plaintiff. Declared that the handwriting on the first page of the copy will is a valid codicil to the will dated 23 October 2001 pursuant to s 18 Succession Act 1981 (Qld); probate of the will and codicil...
Key principles
Where a handwritten amendment on a copy of a formally executed will purports to state testamentary intentions but does not satisfy statutory formalities, the court may, under s...
The s 18 enquiry follows the threefold factual questions derived from Hatsatouris (as explained in Lindsay): (1) was there a document, (2) did it purport to embody testamentary...
A handwritten notation on a copy of a will can amount to a codicil where the court is satisfied the deceased intended the notation to effect the testamentary change; formal...
Where property specified in a will was validly given inter vivos prior to death, a notation purporting to change its testamentary disposition does not operate because the...
Issues before the court
Whether the handwritten notations on a copy of the deceased's will constituted a legally effective alteration (codicil) despite not complying with...
Plain English Summary
The Supreme Court of Queensland (Davis J) held that certain handwritten amendments on a copy of a 2001 will were made by the deceased and, in relation to the revocation of a bequest to her step-granddaughter, reflected the deceased's testamentary intention. Although the amendments did not comply with the formal execution requirements, the Court exercised its discretion under s 18 of the Succession Act 1981 (Qld) to dispense with formalities and declared the handwriting a valid codicil. Probate of the will and codicil was granted to the applicant executor; other notations either recorded inter vivos gifts or were not the subject of orders sought.
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Deep Dive
2,021 words · generated 01/07/2026
What happened
Facts
Valerie Joan McKeon Picking executed a formal will on 23 October 2001 (para [6]). The will appointed Wendy Nielsen and Margot Ricardo as executors and made specific bequests and residue distributions (paras [11]-[12]).
Whether the notations in relation to clause 6(b) (sewing table and additional items) constituted a testamentary alteration enforceable on probate.
Whether the notations adjacent to clause 6(d) amounted to a testamentary variation altering the distribution of residue.
Whether probate should be granted in a manner that recognises the codicil.
Cited legislation
No linked legislation citations have been extracted yet.
About a year before her death, Mrs Picking told Wendy the location of a copy of the will in a set of drawers outside the water closet at her home (para [7]).
Mrs Picking died on 11 March 2020 (para [8]). After her death Wendy located the copy in the drawer and observed handwritten notations on the copy which she identified as the deceased's handwriting (paras [9]-[10], [31]).
The notations affected three parts of the will: clause 6(a) (bequest of dining table and chairs to Rowena Docherty), clause 6(b) (sewing table to the Historical Society, and an apparent addition of a jug and basin), and clause 6(d) (residuary share to Merle with a handwritten note referencing nephews John and Michael) (paras [13]-[21]).
Following discovery, solicitors for Wendy contacted Rowena, the Historical Society and the nephews. Rowena signed an agreement and disclaimer acknowledging the deceased intended to remove the testamentary disposition to her (para [23]). The Historical Society's treasurer confirmed the sewing table and jug and basin had been delivered to them some years earlier (para [24]). John and Michael signed disclaimers indicating they did not treat the handwritten comments as testamentary dispositions (para [25]).
Wendy applied for probate of the will and for a declaration under s 18 that the handwriting on the copy was a valid codicil; the application was dealt with on the papers without oral hearing (paras [1], [26]).
Procedural posture and decision
Davis J considered the statutory framework (ss 10, 16 and 18 Succession Act 1981 (Qld)), relevant authority (Hatsatouris and Lindsay), and the primary facts, and concluded:
All handwritten notations were made by the deceased (para [31]).
The notations did not revoke the will but in relation to clause 6(a) manifested the deceased's testamentary intention to revoke that specific bequest and were intended to operate as an alteration on death (paras [32]-[35]).
The notations relating to clause 6(b) recorded an inter vivos gift to the Historical Society; the items were not part of the estate at death (paras [34], [46]).
The notation adjacent to clause 6(d) did not manifest a testamentary intention to alter that clause and, in any event, no relief was sought on that point (paras [35], [47]).
Orders: Court declared the handwriting on the first page of the copy will a valid codicil under s 18; probate of the will and codicil granted to Wendy with leave reserved to Margot; costs to be borne by the estate (orders, para [48]).
Why the court decided this way
Statutory framework and legal test
s 10 defines the formal execution requirements for a will (para [37]). s 16 requires alterations to a will to comply with those formalities (para [39]). Section 18 provides the Court a statutory discretion to dispense with execution requirements where a document purports to state testamentary intentions and the Court is satisfied the deceased intended the document or part to form the will or alteration (para [41]).
The Court applied the three-part factual test derived from Hatsatouris and explained by Boddice J in Lindsay: (1) existence of a document, (2) whether it purports to embody testamentary intentions, and (3) whether the deceased intended the document to operate as her will or alteration (para [42]). Those are primarily factual inquiries.
Application to the facts
The Court made fundamental factual findings: the notations were by the deceased (para [31]), the deceased had communicated to Wendy that the copy was where she kept it and had clearly regarded the copy (with amendments) as her operative will (paras [7], 32-(e)). These facts were significant in satisfying the third limb of the test: intention that the document operate as an alteration.
Clause 6(a): the waved through clause, the words "forget this" and other notations were found to manifest a testamentary intention to revoke that bequest, and Rowena accepted this and disclaimed her interest (paras [13]-[16], [33], [23]).
Clause 6(b): the Court found the notations recorded an inter vivos gift; the Historical Society confirmed delivery, so the items were not part of the estate and no testamentary alteration was necessary (paras [18]-[19], [24], [34], [46]).
Clause 6(d): the Court found the notation vague, identified no property, and inferred it was deliberative rather than testamentary. Moreover, no relief was sought regarding clause 6(d) and interested parties had not been given notice, so the Court declined to adjudicate that point (paras [20]-[21], [35], [47]).
Conclusion
Given the findings, the Court exercised the s 18 discretion to dispense with formalities and declared the notations in relation to clause 6(a) to be a valid codicil, and granted probate inclusive of that codicil so the will could be properly described as the deceased's last will (paras [43]-[45]).
Before and after state of the law
Before
The statutory regime (ss 10, 16, 18) already permitted flexibility: formalities for execution are required, but s 18 allows the Court to validate documents that state testamentary intentions even if formalities are lacking (paras [37]-[41]).
Courts have long applied a factual threefold test in s 18-like contexts (Hatsatouris) and Queensland courts have followed that approach (para [42] and footnote [15]).
After
Re Picking applies the established approach and illustrates its practical operation: where the deceased has manifested both testamentary intent in the handwriting and an intention that the copy operate as her operative will (including having directed a potential executor to its location), a court will validate the notation as a codicil under s 18 (paras [7], [31]-[35], [45]).
The decision confirms that evidence of the deceased treating a copy as her operative will and communicating its location to a likely executor is powerful factual material for satisfying the s 18 test (paras [7], 32-(e)).
Key passages with plain-English translation
s 18 quoted (para [41])
Court text: s 18 allows consideration of documents that purport to state testamentary intentions and the Court may treat them as a will or alteration if satisfied the deceased intended them to be so.
Plain English: If a piece of writing shows what someone wanted to happen to their property after they die, the Court can treat it like a will or a change to a will even if it was not formally signed, but only if the Court is convinced the person meant it to have that effect.
The three-part test from Hatsatouris/Lindsay (para [42])
Court text: ask whether there was a document, whether it purports to set out testamentary intentions, and whether the deceased intended it to operate as a will/alteration.
Plain English: The Court first checks that the paper exists, then whether it shows wishes about how property should pass after death, and finally whether the person who wrote it wanted it to actually do that job.
Finding that notations were made by the deceased (para [31])
Court text: "I find that all the handwritten notations on the copy will were made by Mrs Picking."
Plain English: The judge accepted the evidence that the deceased herself wrote the notes on the copy.
Operative conclusion that the notations constituted a codicil and formalities dispensed with (para [45])
Court text: "Given the findings ... I find that those notations constituted a codicil ... and I ought dispense with the formal requirements ..."
Plain English: Because of the facts the Court found, the judge said the handwritten changes are a valid change to the will and the usual signing rules can be ignored in this case.
What fact patterns trigger this precedent
This judgment is instructive where a combination of the following facts is present:
A formally executed will exists and a copy of it with handwritten annotations by the deceased is discovered after death (paras [6], [9]-[10], [31]).
The deceased has communicated to an intended executor or close associate that the copy (with annotations) is where her will can be found or that she regarded it as her operative will (para [7], 32-(e)).
The handwriting can be reliably attributed to the deceased (para [31]).
The annotations bear signs of deliberation indicating testamentary intent, such as excisions, "forget this", or dates accompanying notations (paras [13]-[16]).
Alternatively, annotations that merely note inter vivos gifts or are ambiguous as to testamentary effect will not necessarily operate as a codicil (paras [34], [35], [46]).
If those elements exist, a court may validate the handwriting under s 18 as a codicil and dispense with formalities.
How later courts have treated it
Re Picking itself cites and follows the established authorities (Hatsatouris; Lindsay) and treats the three-part test as the operative approach in Queensland (para [42]). It aligns with prior Queensland decisions applying the same approach (Re Garris, Re Edmonson) (para [42] and footnote [15]). Practitioners and courts can expect Re Picking to be used as a fact-specific application of s 18 where similar indicia of testamentary intention and intent that the document operate are present, particularly where the deceased pointed to or stored a copy to be found after death (para [7], 32-(e)). The judgment underlines the importance of primary findings of fact rather than doctrinal bright lines.
Note: At the time of this deep dive the judgment is recent (11 September 2020) and any subsequent appellate treatment is not contained in the judgment itself. Users should check later reports for appellate consideration.
Still-open questions
Degree of formality required in the deceased's conduct to satisfy the third limb
Re Picking relies on the deceased telling Wendy where the copy was located and the Court inferred she regarded the copy as operative (paras [7], 32-(e)). An open factual question is how strong such indicia must be in the absence of direct contemporaneous statements that the annotation was intended to operate as a will. Different fact patterns will test the borderline (e.g. mere possession of a copy with notes but no communication about their status).
Ambiguous marginal notes and the line between testamentary and deliberative thoughts
The Court treated the notation near clause 6(d) as deliberative, not testamentary, because it identified no property and the deceased knew how to make proper gifts (paras [35]-[36]). Future cases will confront marginal notes of varying specificity and the degree to which absence of property identification or formal language defeats a s 18 application.
Reliance on post hoc disclaimers by beneficiaries and evidentiary effect
Here Rowena, John and Michael disclaimed interests and the Historical Society confirmed delivery (paras [23]-[25]). The weight to be given to disclaimers or post-death acknowledgements may vary, particularly if disagreements arise later. The judgment shows such documents are persuasive but does not set rigid rules about their evidential weight.
Interaction between inter vivos gifts and subsequent handwritten notations
The Court found clause 6(b) items had been given inter vivos and the notation merely recorded that fact (paras [34], [46]). Questions remain about situations where a notation both records an inter vivos transfer and purports to change testamentary dispositions, how the Court will treat competing inferences.
Notice and joinder when seeking declarations as to multiple notations
Davis J observed that a declaration regarding clause 6(d) would have been prudent but the applicant did not seek it and interested parties were not given notice, so the Court declined relief (para [47]). This emphasises procedural care; applicants must seek comprehensive relief and join appropriate parties if they seek determinations on all notations.
Practical takeaway
Practitioners seeking to validate informal changes should identify and adduce: (1) reliable attribution of handwriting; (2) evidence the deceased treated the document as operative (including where it was kept); (3) contemporaneous or consistent indicia of testamentary intention; and (4) appropriate notice to interested parties if broader declarations are sought. Re Picking illustrates successful application of s 18 on these fact-specific grounds (paras [31]-[35], [41]-[45]).
Catchwords
SUCCESSION – MAKING OF A WILL – TESTAMENTARY INSTRUMENTS– ALTERATIONS, ADDITIONS AND INTERLINEATIONS – UNEXECUTEDALTERATIONS – where the applicant, who is one of the executors, seeks adeclaration that handwritten amendments to a copy ofthe will is a valid codicilto the last will of the deceased – where the copy of the will was held bythe deceased –where the applicant was told of the location of the copy– whether the deceased intended the amendments to constitute an alterationto her will – whether the court should exercise its discretion under s 18of the Succession Act 1981 to dispense with the execution requirements– whether the amendments are a valid codicil – whether probateshould begrantedSuccession Act 1981, s 10, s 16, s 18Hatsatouris v Hatsatouris [2001] NSWCA 408,followedLindsay v McGrath [2016] 2 Qd R 160, followed
Judgment (116 paragraphs)
[1]
[1] Wendy Elizabeth Nielsen (Wendy), who is one of the two named executors of the estate of Valerie Joan McKeon Picking (Mrs Picking), applies for a grant of probate of Mrs Picking's original will and informal codicils. Other orders are sought including that the application be decided on the papers and without oral hearing.
[2]
[2] Mrs Picking was born in Toowoomba. Her parents expected her to be a boy who they intended to name "Peter". For this reason, her family nicknamed her "Peter". She used that name herself, at least in a family context.
[3] Mrs Picking had siblings, Vivienne Merle Ricardo (Merle), Felix John McKeon (Felix), Brian James McKeon (Brian) and Margaret Jean de Lanty.
[4] Felix has a son, John McKeon (John). Brian has a son, Michael McKeon (Michael). John and Michael are therefore the nephews of Mrs Picking. Merle has two daughters, the applicant, Wendy and Margot Ricardo (Margot). Wendy and Margot are therefore the nieces of Mrs Picking. Another beneficiary, Fiona Leitch (Fiona), is also Mrs Picking's niece.
[5] Rowena Docherty (Rowena) is described as Mrs Picking's step-granddaughter.
[6] Mrs Picking made a will dated 23 October 2001.
[7] About a year before her death, Mrs Picking told Wendy that her will was located "... in a set of drawers in a small room located outside the water closet at her home".[1] Mrs Picking owned and lived in a house at 9 Olivia Avenue, Salisbury in Brisbane.
[8] Mrs Picking died on 11 March 2020.
[9] After Mrs Picking's death, Wendy entered Mrs Picking's house and found a copy of the will in the set of drawers which had been described to her by Mrs Picking a year earlier.
[10] The copy of the will located by Wendy bore handwritten amendments. Wendy was close to Mrs Picking and identifies the handwriting on the will as Mrs Picking's.
[3]
[11] The original will has been filed. There is no direct evidence as to where that was held prior to Mrs Picking's death. However, it has clearly been prepared by de Groots Lawyers and the inference is that it was held by them.
[12] By the will Mrs Picking:
[4]
(b) appointed Wendy and Margot as her executors and trustees;[3]
[5]
(c) by clause 6(a), left her wooden dining room table and six chairs to Rowena;
[6]
(d) by clause 6(b), left her grandmother's sewing table to the Maryborough Wide Bay and Burnett Historical Society (the Historical Society);
[7]
(e) by clause 6(c), left 40 per cent of her residue estate to Mrs de Lanty with a series of alternative beneficiaries named in the event that Mrs de Lanty predeceased Mrs Picking;
[8]
(f) by clause 6(d), left 40 per cent of her residue estate to Merle, with that share of the estate to pass to Merle's children in the event that Merle predeceased Mrs Picking; and
[9]
(g) by clause 6(e), the balance of the residue estate was left to her brothers, Brian and Felix, and her nieces, Wendy, Margot and Fiona as may survive her in equal shares.
[10]
"(a) As to my wooden dining room table and six chairs for my step-granddaughter ROWENA DOCHERTY."
[11]
[14] On the copy of the will, a waved line has been drawn through both lines of clause 6(a).
[15] Next to clause 6(a) is written "forget this". Beneath those words appears the word "Peter" and beneath that a date "7.8.2009". Those words appear on the left hand side of the page adjacent to clause 6(a).
[16] On the right hand side of the page, adjacent to clause 6(a), appears the words "Rowena does not need it". Immediately below those words appears the date "10.2.2018".
[17] Clause 6(b) was originally:
[12]
"(b) As to my sewing table (which belonged to my grandmother) for the MARYBOROUGH WIDE BAY and BURNETT HISTORICAL SOCIETY INC of Kent Street, Maryborough, Queensland."
[13]
[18] A waved line has been drawn through clause 6(b). Above the clause appears the words "Also to go to Mrbou Historical Soc is pink & cream jug & basin which belonged to G/ma James".
[19] On the left hand side of the page, adjacent to clause 6(b), appears the notation "OK done" and to the right of the page, roughly adjacent to clause 6(b), appears the words "Have sent this up to Mrbou (sewing table)".
[20] Clause 6(d) appears in the will as:
[14]
"(d) As to a further forty (40) percent share of the residue of my estate for Merle but if she fails to survive me leaving children who do survive me then those children shall take (and if more than one in equal shares as tenants in common) the benefit of my estate which would otherwise have passed to their mother under this clause."
[15]
[21] Above clause 6(d) is handwritten "Something for Felix John's son JOHN and something for Brian James's MICHAEL". That appears written across the top of the clause. Then, adjacent to the clause and written on the right hand side of the page appears "Peter" and under that a date "10.2.2018".
[16]
Action of Wendy's solicitors after Mrs Picking's death
[17]
[22] Wendy's solicitors made contact with Rowena Docherty, who is the person to whom clause 6(a) of the will left the wooden dining room table and six chairs.
[23] That contact resulted in Rowena signing a document headed "Agreement and Disclaimer", the relevant passage in which is:
[18]
"I am in agreement that the deceased intended to remove the testamentary disposition to me contained under clause 6(a) of her will.
[19]
Even in the event an alternative view was taken that the handwritten amendments by the deceased did not constitute a valid removal of the gift then I disclaim any interest that I may have in the estate of the deceased including that contained in clause 6(a)."[4]
[20]
[24] Wendy's solicitors sent correspondence to the Historical Society. This correspondence initially went unanswered until ultimately Mr Ian Scougall, the treasurer of the Historical Society sent emails to Wendy's solicitors. His emails were in these terms:
[21]
"Re your letter addressed to Maryborough wide bay & burnett historical society in regard to the estate of Valerie Mckeon Picking. On behalf of the above society we confirm that the items referred to in her will were in fact handed to us some years ago for our collection. We were saddened to learn of her passing as she had been a member and supporter of the society for a long period. Yours faithfully ian scougall."
[22]
"With regard to the above I occupy the position of treasurer of the Maryborough wide bay & historical society and would add that at the request of Ms. Mckeon Picking I visited her some time ago and by arrangement she passed the items to me for transport to Maryborough, where they form part of our collection. Her grandfather the late George James was the head teacher of a local primary school and it is our understanding they originally belonged to his wife."[5]
[23]
[25] Correspondence was also sent to Michael and John. Both ultimately signed documents headed "Agreement and Disclaimer".
[24]
"I confirm that I am one in[6] the same as the Michael referred to in the handwritten comment of the deceased.
[25]
I am in agreement that the comment of the deceased was deliberative or contemplative in nature rather than intended to be a testamentary disposition to me.
[26]
Even in the event an alternative view was taken that the comment was intended to be a testamentary disposition then I disclaim any interest that I may have in the estate of the deceased."[7]
[27]
"I confirm that I am one in[8] the same as the John referred to in the handwritten comment of the deceased.
[28]
I am in agreement that the comment of the deceased was deliberative or contemplative in nature rather than intended to be a testamentary disposition to me.
[29]
Even in the event an alternative view was taken that the comment was intended to be a testamentary disposition then I disclaim any interest that I may have in the estate of the deceased."[9]
[30]
[26] There are no facts in issue and no party seeks an oral hearing. I shall deal with the application without oral hearing.[10]
[27] Wendy submits that nothing noted on the copy will suggests an intention by Mrs Picking to revoke the will. She submits that two of the three notations manifest an intention to vary the will.
[28] As to the notation relevant to clause 6(a) of the will, Wendy submits:
[31]
(a) the waved line drawn through the clause, together with the words "forget this" manifest an intention to revoke the bequest; and
[32]
(b) the addition of the name "Peter" was effectively a signature of Mrs Picking which indicated that the amendment was intended to have significance.
[33]
[29] As to the notations relevant to clause 6(b) of the will, Wendy submits:
[34]
(a) the waved line through the clause manifests an intention to revoke the bequest of the sewing table; and
[35]
(b) no submission is made in relation to the apparent inclusion of the pink and cream jug and basin.
[36]
[30] As to the notations relevant to clause 6(d) of the will, Wendy submits:
[37]
(a) the notation "something for Felix John's son John and something for Brian James's Michael" does not suggest an intention to vary the will; rather
[38]
[31] I find that all the handwritten notations on the copy will were made by Mrs Picking.
[32] The notations on the copy will were not intended to revoke the will and do not operate as a revocation. The finding that Mrs Picking intended not to revoke the will by making the notations is an inference drawn by me upon the following primary facts:
[39]
(c) The notations made were on a copy of the will which, as I have said, was prepared by her solicitors.
[40]
(d) Mrs Picking clearly regarded the will, with the amendments she had made on the copy, to be her operative will. This is effectively what she told Wendy the year before her death.
[41]
(e) Directing Wendy as to where she could find the copy will after her death is a clear indication that she regarded the copy will as her last and operative will.
[42]
[33] As to the notations relevant to clause 6(a) of the will I find:
[43]
(a) The notations reflected the testamentary intention of Mrs Picking to revoke the bequest of the wooden dining room table and six chairs to Rowena.
[44]
(b) Mrs Picking intended the will to operate with that amendment to clause 6(a).
[45]
(d) Rowena has disclaimed any interest in the table and chairs.
[46]
[34] As to the notations relevant to clause 6(b) of the will:
[47]
(a) The notations reflect the testamentary intentions of Mrs Picking that both the sewing table and the pink and cream jug and basin would not pass to the Historical Society under her will.
[48]
(a) that intention was formed because she intended and had made an inter vivos gift of those things to the Historical Society; and
[49]
(b) she did make an inter vivos gift of those things to the Historical Society.
[50]
[35] As to the notations relevant to clause 6(d) of the will I find that:
[51]
(a) Mrs Picking did not manifest a testamentary intention to alter the operation of clause 6(d).
[52]
(b) John has disclaimed any interest in the property the subject of clause 6(d).
[53]
(c) Michael has disclaimed any interest in the property the subject of clause 6(d) of the will.
[54]
[36] The finding that Mrs Picking did not intend to vary her will by the notation to clause 6(d) is an inference drawn by me from the following primary facts:
[55]
(a) There is no property identified in the notation.
[56]
(b) Mrs Picking was obviously aware of how to make a proper gift; she had done it in her will.
(1) This section sets out the way a will must be executed.
[59]
(ii) someone else, in the presence of and at the direction of the testator.
[60]
(3) The signature must be made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time.
[61]
(4) At least 2 of the witnesses must attest and sign the will in the presence of the testator, but not necessarily in the presence of each other.
[62]
(5) However, none of the witnesses need to know that the document attested and signed is a will.
[63]
(6) The signatures need not be at the foot of the will.
[64]
(7) The signature of the testator must be made with the intention of executing the will.
[65]
(8) The signature of a person, other than the testator, made in the presence of and at the direction of the testator must be made with the intention of executing the will.
[66]
(10) A person who can not see and attest that a testator has signed a document may not act as a witness to a will.
[67]
(11) If a testator purports to make an appointment by will in the exercise of a power of appointment by will, the appointment is not valid unless the will is executed under this section.
[68]
(12) If a power is conferred on a person to make an appointment by will and the appointment must be executed in a particular way or with a particular solemnity, the person may make the appointment by a will that is executed under this section but is not executed in the particular way or with the particular solemnity.
[69]
(13) This section does not apply to a will made under an order under section 21."
[70]
[38] There is no suggestion that the will is not validly executed.
[39] Section 16 prescribes the necessary requirements for a valid variation of a will. It provides:
[71]
(1) An alteration to a will after it has been executed is not effective unless the alteration -
[72]
(a) is executed in the way a will is required to be executed under this part; or
[73]
(b) is authorised by an order under section 19 and is executed under section 20; or
(2) Subsection (1) does not apply to an alteration to a will made by, or at the direction of, the testator if the words or effect of the will are no longer apparent because of the alteration.
[76]
(3) If a will is altered, it is sufficient compliance with the requirements under this section for execution of the alteration, if the signature of the testator and of the witnesses to the alteration are made -
[77]
(a) in the margin or on some other part of the will beside, near or otherwise relating to the alteration; or
[78]
(b) as authentication of a memorandum referring to the alteration and written on the will."
[79]
[40] The notations on the copy will do not comply with s 10 and therefore do not comply with s 16.
[41] Section 18 vests a discretion in the court to dispense with formal execution requirements of, relevantly here, an alteration of a will. Section 18 provides:
[80]
"18 Court may dispense with execution requirements for will, alteration or revocation
[81]
(1) This section applies to a document, or a part of a document, that -
[82]
(a) purports to state the testamentary intentions of a deceased person; and
[83]
(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.
[84]
(3) In making a decision under subsection (2), the court may, in addition to the document or part, have regard to -
[85]
(a) any evidence relating to the way in which the document or part was executed; and
[86]
(b) any evidence of the person's testamentary intentions, including evidence of statements made by the person.
[87]
(4) Subsection (3) does not limit the matters a court may have regard to in making a decision under subsection (2).
[88]
(5) This section applies to a document, or a part of a document, whether the document came into existence within or outside the State."
[89]
[42] In Lindsay v McGrath,[12] Boddice J, referring to Hatsatouris v Hatsatouris,[13] explained the three requirements which must be fulfilled before the court ought make an order under s 18 dispensing with execution requirements. His Honour said:
[90]
"[57] In Hatsatouris v Hatsatouris[14] Powell JA observed, in relation to the analogous provision in New South Wales:
[91]
'It is, and has long been, my view that 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:
[92]
(b) did that document purport to embody the testamentary intentions of the relevant Deceased?
[93]
(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?"
[58] The second element requires a consideration of the expression 'testamentary intentions'. In Re Masters (deceased)[16] Mahoney JA observed:
[96]
'... [The] document must state the deceased's 'testamentary intentions', that is, his wishes or intentions as to how, voluntarily, his property is to pass or be disposed of after his death. A will may, of course, do other things: it may, for example, appoint a legal personal representative, exercise a special power, appoint a guardian or the like: see Halsbury's Laws of England, par 202. But it is the disposition of the deceased's property voluntarily after his death which is, for present purposes, the relevant characteristic of a will.'
[97]
[59] The third requirement requires the Court to be satisfied on the evidence that the deceased, either at the time of drafting the document or subsequently, formed the intention that the particular document operate as his or her Will. That requirement does not involve establishing that the deceased consciously set his or her mind to the legal formalities of making a Will.[17] However, it is not enough that the document set out the deceased's testamentary intentions. What must be established, by evidence, is that the deceased intended the document to operate to dispose of the deceased's property upon death.[18]" (footnotes in original)
[98]
[43] In many respects, the application to give probate on the alleged codicil serves no practical purpose. That is because:
[99]
(a) Rowena does not contest the application and has disclaimed any interest in the wooden table and chairs.[19]
[100]
(b) The sewing machine and the jug and basin were given to the Historical Society before Mrs Picking's death and so did not form part of her estate.[20]
[101]
(c) Both John and Michael have disclaimed any interest in the residue estate.[21]
[102]
[44] However, probate is being sought of the will. It would be inappropriate to grant probate of the will without granting probate to any codicil as otherwise the will to which probate was granted could not be properly described as the last will of Mrs Picking.
[45] Given the findings that I have made in relation to the notations concerning clause 6(a), I find that those notations constituted a codicil to the will and I ought dispense with the formal requirements for the making of the codicil.
[46] The position concerning the notations relevant to clause 6(b) of the will are different. The testamentary intention evidenced by clause 6(b) was that upon Mrs Picking's death the sewing machine should pass to the Historical Society. In fact, before Mrs Picking's death she made a gift of the sewing machine and the jug and bowl to the Historical Society. Title in those things passed to the Historical Society upon delivery to it. The notations on the copy will record the fact of the gift. The will has not been altered. The property the subject of clause 6(b) was simply not property of Mrs Picking at the time of her death and therefore does not form part of her estate.
[47] The application does not seek orders in relation to the notations made in relation to clause 6(d). Given the circumstances of the existence of the copy will with notations, it would have been prudent to seek a declaration that the notations on the copy will in relation to clause 6(d) do not constitute a variation of the will. However, that relief has not been sought. No party interested in the will has been given notice that such relief has been sought and therefore it ought not be given.
[48] I make the following orders:
I declare that the handwriting on the first page of the copy will filed with the application is a valid codicil to the will of the deceased dated 23 October 2001 pursuant to s 18 of the Succession Act1981.
[103]
[1] Affidavit of Wendy Elizabeth Nielsen, affirmed 29 July 2020, CFI 3, paragraph 6.
[104]
[4] Affidavit of Wendy Elizabeth Nielsen, affirmed 29 July 2020, exhibit WN-2.
[105]
[5] Affidavit of Wendy Elizabeth Nielsen, affirmed 29 July 2020, exhibit WN-9. Both emails reproduced faithfully with any typographical errors.
[106]
[7] Affidavit of Wendy Elizabeth Nielsen, affirmed 29 July 2020, exhibit WN-10.
[107]
[9] Affidavit of Wendy Elizabeth Nielsen, affirmed 29 July 2020, exhibit WN-11.
Declared that the handwriting on the first page of the copy will is a valid codicil to the will dated 23 October 2001 pursuant to s 18 Succession Act 1981 (Qld); probate of the will and codicil granted to Wendy Elizabeth Neilsen as executor with leave reserved to Margot Ricardo; costs borne by the estate (orders 1-3; paras [45], [48]).
Probate of the will and codicil is granted to Wendy Elizabeth Neilsen as executor with leave reserved to Margot Ricardo subject to the formal requirements of the registrar.