In the Estate of John Colin Lindenberg [2025] QSC 298 (12 November 2025)

• [1] This is an application by Kenneth James Latchford (Kenneth) and Ricki Caroline Latchford (Ricki) that:

(a) it be declared that pursuant to section 18 of the Succession Act 1981 (Qld) that the document filed with the Registry, a copy of which is exhibit RCL1 to the affidavit of Ricki Caroline Latchford sworn on 13 October 2025, is the last will of John Colin Lindenberg (John) (the Will); and

(b) subject to the formal requirements of the Registrar, a Grant of Probate of the will of John Colin Lindenberg be granted to Kenneth James Latchford and Ricki Caroline Latchford.

• [2] For convenience and without intending any disrespect I will refer throughout this judgment to relevant persons by their given names.
• [3] The applicants are the brother-in-law and sister of the deceased and the named executors in the Will.
• [4] The Will is an informal will. In particular, it is not properly executed as it is witnessed by only one witness and it does not have the usual form and content of a will. 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.
• [5] I am satisfied that it is not inappropriate to deal with this application on the papers in circumstances where:

(a) the application for probate was advertised;

(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.

• [6] 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.

• [7] 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]

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

(a) John, an elderly farmer with no children of his own, was involved in a serious car accident;

(b) it became obvious to his sister (Ricki) that he urgently required a will;

(c) he advised Ricki that he did not have a will;

(d) he indicated what he wanted (consistent with the Will) and Ricki suggested that something ought be written down;

(e) he agreed and provided his instructions to Ricki who recorded them in the form of the Will;

(f) Ricki provided the typed document to her brother (Darryl) who took the document into John in hospital. His sons, Russell Lindenberg (Russell), one of the beneficiaries, and Scott Lindenberg (who has a disability) were with him for that visit;

(g) Russell gave John the document, John appeared to read it;

(h) John signed the document, Darryl witnessed the document;

(i) Russell returned the document to Ricki.

• [9] I am satisfied that the Will is a document for the purposes of s. 18.

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

• [10] The Will does so. The beneficiaries are identified. Absent any indication to the contrary, the two beneficiaries share equally in the estate.
• [11] The beneficiaries are nephews of John. Russell assisted John with the running of the farm towards the end of his life. Michael is the oldest son of John's eldest brother (deceased) who had declined to take the farm over from John's father, standing aside in favour of John.

That the Will provides "Distribution of specific assets to be decided by the beneficiaries" is not a different or contrary disposition and simply allows the beneficiaries to divide the estate assets between themselves. Is the document testamentary, only to operate upon death and intended to constitute the deceased's will?

• [12] Whilst the Will does not describe itself as such:

(a) it was prepared by Ricki in the context of John agreeing that his wishes upon death ought be recorded in a written form;

(b) it identifies two executors which is a hallmark of a will;[2]

(c) it identifies the primary asset of the estate (a farm);

(d) it is consistent with the orally expressed wishes of John made prior to his death to one of the beneficiaries (Michael), to his sister Ricki, and to his niece Melissa.

• [13] I am satisfied that John intended the document to be testamentary, that it was only to operate upon his death and that it was intended to be his will. Upon signing (after apparently reading the document) he remarked to the effect "That's about what we talked about." John was in hospital, elderly and deteriorating. He had expressed his wishes clearly orally, but agreed it was sensible to put something in writing. He allowed the document to go back into the possession of Ricki with whom he had discussed his wishes.

• [14] The presumption of testamentary capacity does not arise in the circumstances of an informal will.[3] The test for testamentary capacity was summarised by Applegarth J in Frizzo v Frizzo.[4]
• [15] I am satisfied that John had testamentary capacity at the time he made the Will.[5] Although plainly very unwell, the consistent evidence of his relatives is that even in hospital and right up to his death John was coherent and his usual cognitive "cheeky" self. His death certificate indicates nothing that would suggest to the contrary.
• [16] The Will is rational on its face and was created using a patently rational process, in the circumstances of the estate primarily involving a family farm.

Russell's presence at the execution of the Will

• [17] I have had regard to the fact that Russell, a beneficiary, took the typed Will to John for signing and was present when John signed the Will. It does not change my conclusion. Prima facie, there is nothing which prevents a beneficiary from being present at the time a will is executed.[6] Russell did not give any instruction as to the contents of the Will and was not involved in its preparation. There are no circumstances which excite the suspicion of the Court that John did not know or approve of the contents of the Will. I am satisfied that the Will reflected John's genuine intention as to how his property was to pass after death.

• [18] I am satisfied that the declaration sought ought to be made and that probate should be granted to Kenneth and Ricki. No order in respect of costs has been sought or is made.
• [19] An order will be made in the terms identified on the first page.

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

[2] Fell v Fell (1922) 31 CLR 268 at 276.

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

[4] [2011] QSC 107 at [21]- [22].

[5] Re Estate of Carrigan (deceased) [2018] QSC 206 at [17].

[6] Challen v Pitt [2004] QSC 365 at [39].