In the Estate of Evelyn Margaret Berenger [2025] QSC 303 (13 November 2025)

• [1] This is an application by Cedric Ian Anthony Berenger (Cedric) concerning his deceased wife's informal will dated 5 February 1970 (the Will). He is the named executor and sole primary beneficiary. Cedric and the deceased (Evelyn) were married for over 60 years at the time of Evelyn's passing. They have two adult children together. Cedric is currently 84 years of age.
• [2] The Will is an informal will. In particular, it is not properly executed. Whilst it is a will that was seemingly prepared by a firm of solicitors and looks like an original, it is only signed by Evelyn on the second page and has what appears to be a hand amendment (not of any substance and in a different pen to the signature) in clause 6. Even though the Will identifies in a typed form by name, occupation and address two witnesses (a solicitor and a secretary), the Will is not signed by either of them.
• [3] Section 10 of the Succession Act 1981 (Qld) (the Act) prescribes the requirements for the execution of a valid will. Subsection (3) concerns the need for two witnesses.
• [4] I am satisfied that it is not inappropriate to deal with this application on the papers in circumstances where:

(a) an application for letters of administration on intestacy was advertised (at that time the informal will the subject of this application had not been located and was thought to be lost with no copy of it available);

(b) the persons who might be interested in the grant of probate appear limited;

(c) there is no evidence that suggests that the estate is complex;

(d) the application, involving an informal will, does not raise any novel questions of law.

• [5] Section 18 of the Act provides that the Court may dispense with formal execution requirements and provides:
  1. 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

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

• [6] Accordingly, a discretion to dispense with due execution arises where the court is satisfied that:

(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]

• [7] The circumstances in which the Will came into existence and was executed is sworn to as follows -

(a) in 1970 Evelyn was 27 years of age, married to Cedric and then without children;

(b) Cedric had made a will in 1965 in circumstances where he came into the marriage owning a property and wanted to ensure that it passed to Evelyn on his death. The married couple had little available money at the time and did not consider it then necessary for a will for Evelyn to be prepared;

(c) in 1970 the married couple were attempting to have children and that prompted Evelyn to consult with a solicitor to have a will prepared - namely, the Will.

• [8] The evidence further discloses that Cedric and Evelyn discussed their wills from time to time and considered them appropriate (albeit old). Both Cedric and Evelyn's wills were kept in a box containing important documents.
• [9] Shortly before Evelyn's death Cedric and Evelyn had their wills out and were discussing same with their children and their husbands. Evelyn referred to the Will as being her will. There were discussions about updating the wills given their ages and the Will was left out as a reminder to Cedric to have that task attended to. Evelyn passed shortly thereafter unexpectedly.
• [10] Cedric thought the Will was in the box of important documents but could not locate it there, nor a copy of same. It was thought to be lost. Subsequently it has been discovered amongst records held by a son-in-law who took the Will into safe keeping during a move of Cedric and Evelyn to new premises.
• [11] I am satisfied that the Will is a document for the purposes of s. 18.

Does the document state the testatrix's intention as to how her property would pass after death?

• [12] The Will does so. The beneficiaries are identified.
• [13] The primary beneficiary is Cedric. If Cedric had pre-deceased Evelyn, her surviving children (or children of non-surviving children) would have been the beneficiaries.

Is the document testamentary, only to operate upon death and intended to constitute the deceased's will?

• [14] The Will was professionally prepared and it is readily inferred that the document is testamentary and was only to operate upon death.
• [15] Whether the Will was intended to constitute Evelyn's will requires some further consideration in light of the informalities of the Will.
• [16] I do conclude that the Will was intended to constitute Evelyn's will given the evidence that:

(a) it had been regularly referred to over the years;

(b) it was kept with other important documents;

(c) Evelyn specifically referred to the Will as being her will, including shortly before her death;

(d) there were discussions about updating that document given its age;

(e) no other will was made during her lifetime;

(f) Evelyn rebuked the family joke about everything being left to the Dog and Cat Society.

• [17] The Will is also consistent with her marriage and at the time planned children. Cedric and Evelyn remained in a loving marriage until her death.

• [18] 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]
• [19] I am satisfied that Evelyn had testamentary capacity at the time she made the Will.[4] She was a young woman at the time who would go on to lead a productive long life.
• [20] The Will is rational on its face given the circumstances existing at the time, and remains so.

• [21] In the circumstances of this case I consider it appropriate that this application be determined quickly and without any re-advertising occurring (as required by rule 598 of the Uniform Civil Procedure Rules 1999 (Qld)). Cedric is not a well man. The estate is not complex. The children of the marriage support the application and have advised Cedric that they do not wish to contest the estate. There is requisite urgency to the application.

• [22] I am satisfied that the declaration sought ought to be made and that probate should be granted to Cedric.

[1] Hatsatouris v Hatsatouris [2001] NSWCA 408; Lindsay v McGrath [2016] 2 Qd R 160; Re Turnbull (dec'd) [2023] QSC 140.

[2] Re Spencer (deceased) [2014] QSC 276; [2015] 2 Qd R 435.

[3] [2011] QSC 107 at [21]- [22].

[4] Re Carrigan [2018] QSC 206 at [17].