//
[2023] QSC 140
General information, not legal advice.
Supreme Court of Queensland
2023-06-27
Davis J
Original judgment source is linked above.
[1] The applicant, Kenneth Graham Turnbull (Kenneth), seeks a declaration that a document purporting to be the will of Leslie Owen Turnbull (Leslie) is his last will. Kenneth seeks to have the application decided without oral hearing and he seeks other orders about costs.
[3] Alexander Edmund Denis Turnbull (Alex) is the only issue of Leslie.
[4] Leslie was, at the time of his death, divorced and single. By the intestacy rules,[1] Alex would take the entirety of the estate in the event of Leslie dying intestate.
[5] The estate consists of $147,000 held in bank accounts and the freehold of a property in Lawnton in which Leslie resided.
[6] Leslie was diagnosed with terminal lung disease.
[7] In either late 2017 or early 2018, Leslie took steps to make a will. He obtained a standard will form which he completed himself in the presence of Alex (the will). The will appointed Kenneth as executor and trustee of Leslie's estate.
[8] A special gift was made to Lee Hornby of what was described in the will as "my car". Other evidence identifies a Toyota Camry as Leslie's car and therefore the subject of that gift.
[9] The standard will form used by Leslie provides for a clause dealing with the residue of the estate. Leslie completed this so that it read:
"I direct my Executor(s) to pay all my debts and then I give the residue of my estate to Alexander Edmund Denis Turnbull (my son) all my worldly possessions, The House at 25 Macaranga Street, Morayfield to be kept or sold. Talk to co-owner Jacob Walton. My trustee Kenneth Graham Turnbull I give immediate control of my financial matters.
Money can be allocated to Alexander for educational purposes till he reaches the age of 25 years and then collects the balance of my estate.
The Bendigo Bank Account 116 714 973 can be put to Alexander on death."[2]
[10] It can be seen that the will provides for Kenneth to be given control of Leslie's "financial matters" and "money can be allocated to Alexander for educational purposes till he reaches the age of 25 years and then collects the balance of my estate". Alex was between 21 and 22 years of age at the time the will was made and 28 by the time of Leslie's death.
[12] The will is not signed by Leslie, but it is signed by Stephanie Wood and Lee Hornby as witnesses. Stephanie Wood lived with Leslie and Alex. Lee Hornby is a friend of Alex and knew Leslie for about 17 years before his death. Leslie died on 8 October 2022.
[13] Rule 489 of the Uniform Civil Procedure Rules 1999 (UCPR) provides for applications without oral hearing. Rule 489 provides:
"489 Proposal for decision without oral hearing
(1) A party making an application, including an application in a proceeding, may propose in the application that it be decided without an oral hearing.
(2) If the applicant proposes the application be decided without an oral hearing, the court must decide the application without an oral hearing unless -
(a) under rule 491, the court considers it inappropriate to do so; or
(b) under rule 494, the respondent requires an oral hearing; or
(c) under rule 495, the applicant abandons the request for a decision without an oral hearing; or
(d) the Chief Justice or Chief Judge suspends the operation of this rule by direction."
[15] Section 10 of the Succession Act 1981 prescribes the requirements for the execution of a valid will. Section 10 provides:
(1) This section sets out the way a will must be executed.
(a) in writing; and
(b) signed by -
(i) the testator; or
(ii) someone else, in the presence of and at the direction of the testator.
(3) The signature must be made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time.
(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.
(5) However, none of the witnesses need to know that the document attested and signed is a will.
(6) The signatures need not be at the foot of the will.
(7) The signature of the testator must be made with the intention of executing the will.
(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.
(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.
(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.
(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.
(13) This section does not apply to a will made under an order under section 21."
[16] Section 18 of the Succession Act provides that the Court may dispense with formal execution requirements. Section 18 provides:
"18 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."
[17] It has been held that the discretion to dispense with due execution arises where:
(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.[5]
[18] None of the exclusory factors in r 489(2)(b), (c) or (d) apply.
[19] The circumstances under which the will was prepared are deposed to by Alex. The circumstances under which the will was signed by each of Ms Wood and Mr Hornby are deposed to by those two people. There is nothing which would give rise to doubt about any of that evidence.
[20] The principles governing informal wills are well set. There is no need for an oral hearing. It is appropriate to deal with the application on the written submissions without oral hearing and so the exclusion under r 489(2)(a) does not apply.
[21] I have therefore decided the application without oral hearing.
Orders under s 18
[22] The circumstances in which the will came into existence and came to be executed by the two witnesses but not by Leslie were the subject of affidavits from three witnesses, being Alex, Ms Wood and Mr Hornby.
[23] As earlier observed, Alex was present when Leslie completed the will form.
[24] Ms Wood and Mr Hornby both swear that they were in the presence of each other and in the presence of Leslie for the purposes of making Leslie's will. This meeting occurred in the lounge room of Leslie's home at 34 Bates Drive, Everton Hills. Leslie identified the document as his will and asked both Ms Wood and Mr Hornby to sign it, which they did. Ms Wood was in a hurry to leave the meeting because of some other commitment and she left.
[25] Ms Wood's memory is that Leslie said to her "words to the effect that he would sign the purported will after I left". Mr Hornby's memory is a little different. He recalls "Leslie said to me that he would get us back together again at a later time to finish signing it properly".
[26] 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?
Is the document testamentary and that it is only to operate upon death and is intended to constitute the deceased's will?
[28] As already observed, there is a difference between Ms Wood's memory of events and Mr Hornby's.[6] From Ms Wood's version, the inference would be drawn that Leslie intended the will to operate immediately and he would simply formalise it by signing it. Mr Hornby's recollection of Leslie saying to him that Leslie intended to meet with the witnesses later and "finish signing it properly" leads to two possible inferences. The first is that Leslie intended the will to operate immediately and would formalise it later in the presence of the witnesses. The second is that he did not intend for it to operate until it was "signed properly".
[29] It is unnecessary to determine which of Ms Wood's or Mr Hornby's memory of events is that accurate one. The evidence is strong that Leslie intended the will to be effective immediately and operate upon his death.
[30] Leslie was terminally ill and had decided to make a will. The will on its face shows that Leslie turned his mind to how his estate should be left and, in particular, how his brother, Kenneth, would manage the estate until Alex was at a stage, in Leslie's opinion, where he could control his inheritance himself. There is no evidence of any later will. In my view, it is unlikely that Leslie would go to the trouble of composing the will, not intend that will to have testamentary force, but then make no other will.
[31] Kenneth spoke to Leslie in 2019. Leslie told Kenneth that he would be appointed his executor. He told Kenneth that his car would be gifted to Lee Hornby with the residue to Alex. Leslie told Kenneth that he was concerned that Alex should be denied access to his inheritance until his 25th birthday. This is all consistent with the terms of the will, suggesting that Leslie believed that the will was in force.
[32] Alex swore that after Leslie had filled out the will (and presumably before it was signed by the witnesses), Leslie placed the will inside his buffet cabinet. This is where Leslie kept important documents. That is where the will was found after Leslie's death.
[33] The retention of the will in a place where Leslie kept important documents is, in my view, significant. Had Leslie changed his mind and not wished to execute the will, he would surely have destroyed it rather than keeping it in a safe place with other important documents. It is far more likely that Leslie considered the will to be a testamentary document being his last will, and that he overlooked placing his signature on it. This is understandable given his state of health.
[34] I am satisfied that the declaration ought to be made and that probate should be granted to Kenneth.
[35] Kenneth seeks an order that the costs of the application should be paid from the estate on an indemnity basis.
[36] It was necessary to make the application because the will did not comply with s 10 of the Succession Act.
[37] Costs have been kept to a minimum by Kenneth seeking that the application be determined without oral hearing.
[38] Alex, to whom the residue will fall, supports the application for probate of the will.
[39] It is appropriate to order that the estate bear the costs on an indemnity basis.
[2] The words in italics were part of the printed form.
[5] Macey v Finch [2002] NSWSC 933, Hatsatouris v Hatsatouris [2001] NSWCA 408, Lindsay v McGrath [2016] 2 Qd R 160, Proctor v Klauke [2011] QSC 425.
[6] See paragraph [25] of these reasons.