Re Nicholls [1995] QSC 184 (17 August 1995)

There is no contest as to the validity of the Will dated 26th September 1988, but there is with respect to that of 11th March 1995. That latter document is apparently in the handwriting of the deceased and is spread over two pages. The first page is neither signed nor attested. On the second page there is a signature which has been accepted as being that of the deceased. There is no attestation clause, but beneath the signature of the deceased is written the word "witnessed" and alongside that there is one signature.

It is therefore clear that the document is not attested to by two or more witnesses as primarily required by s. 9 of the Succession Act 1981. The document would therefore not constitute a valid Will unless the Court was satisfied that it was "a testamentary instrument executed in substantial compliance with the formalities prescribed by" s. 9 and "that the instrument expresses the testamentary intention of the testator".

Mr. Mullins who appeared on behalf of the parents submitted that in all the circumstances there was such substantial compliance with the formalities as would permit the Court to admit the document of 11th March 1995 to probate. Mr. Wilson, who appeared for Perpetual Trustees Queensland Limited, submitted that some form of attestation by at least two persons was required before there could be substantial compliance; it followed in his submission that the document of 11th March could not be admitted to probate as a testamentary instrument.

Each Counsel advanced a very carefully formulated submission in support of his contention. I was presented with the following schedule of relevant cases:

(ii) Re Grosert (1985) 1 Qd.R. 513, Vasta J.

(iii) Re Johnson (1985) 1 Qd.R. 516, Thomas J.

(iv) Re Henderson (White) (unreported), No. 231 of 1985, Macrossan J; 13th May 1986 - Full Court; 27th June 1986 - High Court.

(v) Re Vankovitich (unreported), 10th December 1987, Thomas J.

(vi) Re Gaffney (unreported), No. 1653 of 1987, Thomas J.

(vii) Re Matthews (1989) 1 Qd.R. 300, Carter J.

(viii) In the Will of Eagles (1990) 2 Qd.R. 501, Williams J.

(ix) Re Cashin (1992) 2 Qd.R. 63, Demack J.

(x) Re Chalmers (unreported), 7th June 1993, White J.

(xi) Re McConville (unreported), 6th September 1993, Demack J.

(xii) Re Whittle (unreported), 9th August 1993, Shepherdson J.

(xiii) Re Armstrong (unreported), 7th April 1994, Shepherdson J.

Those factually almost identical with the present are Re Henderson and Re Chalmers; in each of those cases there was only one attesting witness. In Re Henderson at first instance Macrossan J. said:

"... there is an essential difficulty in saying that substantial compliance with the requirements of the section has occurred if the two witnesses referred to by the section have not been involved in some way or other in the testator's execution or acknowledgment."

His Honour went on to refer to the witnessing by one person only as a "basic deficiency". There were other facts, to which I need not refer, which may well have strengthened the conclusion reached by the Judge at first instance in that case. The Full Court dismissed an appeal from that decision, merely saying that the appellate court could not conclude that the judgment appealed from was erroneous in concluding there had not been substantial compliance with the formalities required by the section. Thereafter an application for special leave to appeal was refused by the High Court. In refusing leave Gibbs CJ. is recorded in (1986) 17 Leg.Rep.S.L. 4 as saying:

"... the Court has reached the conclusion that there is no sufficient reason to doubt the correctness of the result reached by the Full Court in this case. In other words, there is no reason to doubt that the attestation by two witnesses is a substantial requirement of the Succession Act and that if the Will is attested by one witness only there has been a failure of substantial compliance."

The judgment of White J. in Re Chalmers provides a careful analysis of the cases but for present purposes all that need be said is that Her Honour followed the approach of Macrossan J. and the Full Court in Re Henderson.

Counsel for Perpetual Trustees Queensland Limited, particularly in the light of what is reported as having been said by Gibbs CJ., submitted that as a matter of law there could never be substantial compliance where there was only one attesting witness. I am by no means convinced that that is the law. There is much force in the observations of Carter J. in Re Matthews (1989) 1 Qd.R. 300 at 303. In all of the cases referred to in the schedule above the particular facts then before the Court were regarded as of vital importance in determining whether or not there had been substantial compliance. As the section itself highlights (cf. observations in Re the Estate of Masters, deceased (1994) 33 N.S.W.L.R. 446) one of the important considerations is whether or not the Court is satisfied that the instrument in question expresses the testamentary intention of the deceased. If that is clearly established then special or exceptional circumstances surrounding the execution of the document may lead, in my view, to a conclusion that there has been substantial compliance despite the fact that there has only been one attesting witness. Support for such a proposition, at least in broad terms, can be found in a number of the judgments referred to above (e.g. Matthews and Eagles). It is not helpful to formulate hypothetical situations which may possibility give rise to such a conclusion.

The observations of Gibbs CJ. are deserving of great weight, but they lose some force because they are not made in a considered judgment of the High Court (cf. the remarks of Dawson J. in Attorney-General (N.S.W.) v Quin (1990) 170 C.L.R. 1 at 52). In all the circumstances I would regard what was said in refusing special leave in Henderson as no more than an endorsement of the result given all the relevant facts in that case.

My task here is to determine whether in all the rather unusual circumstances this case comes within the exception recognised in s. 9.

Having regard to the nature of the document in question, to the manner of death shortly after its execution, to evidence as to his state of mind leading up to the preparation of the document and at that time, to the age and circumstances of the person whose signature appears on the document as a witness, to the (probably readily) availability of other persons to act as attesting witnesses, to the fact that the first page is neither signed nor witnessed, to the fact that there is no attestation clause, and to the conversation deposed to with the deceased by the sole witness I am not in all the circumstances satisfied either that there has been substantial compliance with the requirements of s. 9 of the Succession Act or that the document expresses the testamentary intention of the deceased.

The strongest argument in support of the 1995 document is that in it the deceased recognised the valid claims of his parents to his estate. The (possibly) inaccurate reference to an earlier 1978 Will with Queensland Trustees may indicate a desire to alter the disposition of his property in the September 1988 Will. Certainly the major beneficiary thereunder (a former de facto spouse) has no moral claim to his estate. But given some of the confused or confusing statements made in the 1995 document I am by no means satisfied that it represents a clear, sane statement of testamentary intention.

In all the circumstances the application of the parents should be dismissed, and probate of the Will dated 26th September 1988 of the deceased should be granted to Perpetual Trustees Queensland Limited subject to the formal requirements of the Registrar. I would further order that the costs of and incidental to the parents' application and their opposition to the application of Perpetual Trustees Queensland Limited be taxed on a solicitor and own client basis and paid out of the assets of the estate.