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  •   Notable Unreported Decision

Saltmer v Rennick Lawyers Pty Ltd

 

[2018] QSC 307

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Saltmer v Rennick Lawyers Pty Ltd [2018] QSC 307

PARTIES:

HAYLEY MARIE SALTMER

(applicant)

v

RENNICK LAWYERS PTY LTD

(respondent)

FILE NO/S:

TS No 467 of 2018

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Townsville

DELIVERED ON:

18 December 2018

DELIVERED AT:

Brisbane

HEARING DATE:

10 September 2018

JUDGE:

Brown J

ORDER:

The order of the Court is:

  1. The application is dismissed.
  2. The applicant is to pay the respondent’s costs of the application.

CATCHWORDS:

SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – COSTS – where the deceased gave instructions to the respondent in respect of a potential will – where the applicant applied for a certified copy of a will pursuant to s 33Z of the Succession Act 1981 (Qld) (“the Act”) – where the applicant contends that the will instructions were or may have been intended to be the deceased’s will, an alteration to their will or part of their will, pursuant to the Act – where the respondent resisted providing the will instructions on the grounds that the documents may not be so characterised, and on the basis of legal professional privilege – where the applicant on the day of hearing was granted limited letters of administration in a related proceeding, in order to bring proceedings to determine whether the will instructions constituted a will (including an informal will) under the Act – where consequently, the application under s 33Z became largely moot –  where the question of costs between the parties depended to a certain extent on whether Ms Saltmer would have been successful under s 33Z of the Act – what costs order should be made by the Court 

Succession Act 1981 (Qld), s 10, s 18, s 33Z

Re Gloria May Limpus (deceased) [2013] QSC 66

COUNSEL:

D Fraser QC for the applicant

D Honchin for the respondent

SOLICITORS:

Connolly Suthers Lawyers for the applicant

Rennick Lawyers Pty Ltd for the respondent

  1. [1]
    Ms Hayley Saltmer’s father, Mr Alan Roy Spottiswood, passed away on 8 May 2018.  He left a will that was made in 1988.  His wife is the executor under the 1988 will.  Mr Spottiswood has two children, Hayley and Matthew.  On 12 July 2017, Mr Spottiswood attended the office of Rennick Lawyers Pty Ltd (Rennick Lawyers), who were conducting a property settlement on his behalf.  On that day he was also interviewed by Mr Phillip Rennick to provide instructions in relation to a potential will.  The Lexon Estate Planning Checklist and will instructions, initial contact list and will appointment checklist, and the No Immediate Will Acknowledgement as well as the enduring power of attorney instructions checklist, were discussed at the meeting.  That became Exhibit 1 in these proceedings.  Mr Spottiswood gave some instructions in relation to a will.  According to the instructions given, Mr Spottiswood indicated that he would leave everything to Hayley or her children.  His daughter was proposed as the executor of a new will.  He gave instructions in relation to his funeral and as to organ donations.  He did not sign the Will Instructions sheet.  He however signed a document which was a No Immediate Will Acknowledgement.  The documentation proved not to be the complete set out of documents in the Lexon Will pack. 
  2. [2]
    Mr Spottiswood’s daughter, Ms Saltmer, applied for a certified copy of the will of Mr Spottiswood pursuant to s 33Z of the Succession Act 1981 (Qld) (the Act).  Rennick Lawyers had refused to provide the Lexon Estate Kit to Ms Saltmer under s 33Z of the Act, on the basis that Mr Rennick considered it was not a will as Mr Spottiswood had signed the No Immediate Will Acknowledgment in the Lexon Estate Kit.  Mr Rennick also referred to the fact that the will instructions checklist comprised of confidential instructions and considered that it was subject to legal professional privilege and that he had never received instructions from the deceased or the executors of Mr Spottiswood’s estate to waive such privilege. It was also contended on behalf of Mr Rennick that because of the circumstances surrounding Mr Spottiswood giving those instructions and subsequent events, there were real issues, aside from the signing of the No Immediate Will Acknowledgment, as to whether the instructions were reflective of his intentions in respect of a will.
  3. [3]
    The question for the Court was whether that document constitutes a will (as defined) for the purpose of s 33Z of the Act. 
  4. [4]
    On the day of hearing, the question of access to the document said to be a will for the purposes of s 33Z of the Act became largely a moot point, as Ms Saltmer applied for and was granted limited letters of administration in proceeding 722 of 2018.  That was in order for her to bring proceedings to determine whether the will instructions given to Mr Rennick constituted a will under s 10 of the Act or an informal will if the Court was so satisfied under s 18 of the Act.  As a result of the Court granting the limited letters of administration for that purpose, Ms Saltmer in that role could have access as administrator to the file of Mr Spottiswood held by Rennick Lawyers.   
  5. [5]
    Prior to the determination of the application for limited letters of administration, I clarified with Ms Saltmer’s legal representative whether, if that matter was determined first, that would resolve the primary question under this application.  I was informed that for practical purposes, it would become a question of costs, subject to Rennick Lawyers conceding that the material would be provided to Ms Saltmer if letters of administration were granted to her.  Although Rennick Lawyers was not a party to the application for the limited letters of administration, Mr Rennick was present in the Court in relation to this application. When the Court determined that it would grant limited letters of administration to Ms Saltmer in proceeding 722 of 2018, counsel for Rennick Lawyers then confirmed that Mr Rennick felt relieved of his duty to maintain his client’s privilege and confidentiality obligations, given that there was now a personal representative for the estate, and that accordingly the file would be made available. 
  6. [6]
    I stood the matter down to allow Ms Saltmer’s legal representative the opportunity to look at the file and for the parties to consult as to how the question of costs was to be resolved. I was then informed by Ms Saltmer’s counsel that the original document produced did not contain the whole of the will instructions checklist form.  Ms Saltmer had provided an affidavit that she had seen the signed will instruction checklist in Mr Rennick’s file. I was informed that the question of costs between the parties was unresolved and as the question of costs to a certain extent depended on whether Ms Saltmer would have been successful in her application, limited cross-examination was needed to ascertain whether the documents identified by Mr Rennick were the relevant and complete set of documents that should have been produced under s 33Z.  While I was circumspect that was justified when the argument was essentially one of costs, I permitted cross-examination on a limited basis.
  7. [7]
    The Lexon Estate Kit which had been completed by Mr Rennick with Mr Spottiswood, in fact turned out to be an incomplete version of the Lexon Kit.  To the extent that it was suggested that somehow the document had been changed from that which had been completed and which Ms Saltmer saw, Mr Rennick explained that he picked up a readymade, stapled set of documents prepared in his office and taken that in for an interview, and what was produced to the Court is what would have been completed at the meeting.  He noted by reference to the Lexon Insurance Will instructions list that he used from 2014, which was Exhibit 2, that the document he completed was incomplete with only the first two pages of the Will Instruction list being  in the documents he discussed with Mr Spottiswod.  It was missing pages 3 to 8, page 8 containing the execution clause in the following terms:

“I sign these instructions with the intention that this document is to take effect as my will immediately until such time as a formal will is prepared and executed by me.”

  1. [8]
    I accept the evidence that Mr Rennick gave and in particular, that the incomplete document that was produced had been incompletely compiled when pre-prepared at his firm.  He stated, and I accept, that the missing sheets were missing at the time that he took instructions from Mr Spottiswood.  Ms Saltmer’s legal representative also cross-examined Ms Twivey, who was a law clerk working for Mr Rennick.  She had permitted Ms Saltmer to look at the file of Mr Rennick when Ms Saltmer and her husband turned up to the offices of Rennick Lawyers, without an appointment and notwithstanding that they had been told that Mr Rennick was not there.   She accepted that she was in error in doing so and did so without permission of Mr Rennick. Ms Saltmer recorded the conversation with Ms Twivey.  Ms Twivey’s cross-examination did not assist greatly in the resolution of this application.
  2. [9]
    It was accepted on behalf of Ms Saltmer that there was not a sufficient basis upon which the Court could find on the balance of probabilities that further documents existed and should have been produced under s 33Z other than those that had already been produced by Rennick Lawyers.  It was conceded that it was possible that Ms Saltmer may have been confused as to the signed document she thought she saw when looking at documents in Mr Rennick’s offices and that it was not the Will Instruction sheet. 
  3. [10]
    Given that it was not established that the Will Instruction sheet had been signed by Mr Spottiswood, it was conceded quite properly that the case for production of the document was not as strong as it would have been had the Will Instruction sheet been completed and signed.  However, it was still contended that the document could be a purported will or part of a purported will under s 18 of the Act, particularly because somebody could evince an intention at a later point in time.
  4. [11]
    Mr Rennick contended that the Will Instruction sheet could not constitute a testamentary document under s 18 of the Act by virtue of the fact that Mr Spottiswood had signed the No Immediate Will Acknowledgement.  In was contended on behalf of Ms Saltmer that the will instructions, together with other evidence and in particular the evidence of Mr Spottiswood having informed a financial planner that he had updated his will and appointed Ms Saltmer as his executor, could constitute an informal will pursuant to s 18 of the Act.  That conversation took place on 14 March 2018.  It is contended on behalf of Ms Saltmer that Mr Spottiswood’s statement could only have referred to the instructions given to Mr Rennick as there is no evidence of any other instructions. That may or may not be so.  I am presently not in a position to determine that, nor would it be appropriate to do so.  However the relevance of it, as contended by Ms Saltmer’s counsel, is that, because of the evidence stating that Mr Spottiswood had an updated will, which he submitted could be referrable to the will instructions, that could be sufficient to adopt the will instructions as his will, even though those instructions had occurred sometime before.  The applicant contends that there is therefore evidence from which it can be inferred that Mr Spottiswood’s instructions, whether the Will Instruction sheet was signed or not, could be his will for the purposes of the definition of a will in s 33Z of the Act.
  5. [12]
    Both parties sought costs.  Rennick Lawyers sought costs on an indemnity basis. I consider neither party could on any view be entitled to indemnity costs.

Section 33Z of the Act

  1. [13]
    Section 33Z of the Act was introduced by an amendment made in 2006 after a Law Reform Commission Report No. 52.  It provides that:

“(1) A person who has possession or control of a will of a deceased testator must, if asked, do either or both of the following—

  1. (a)
    allow an entitled person to inspect the will;
  1. (b)
    give an entitled person a certified copy of the will on payment of the person’s reasonable expenses of giving the certified copy.

(2) If a will of a deceased testator has been lost, stolen or destroyed, a person who has possession or control of a copy of the will must, if asked, do either or both of the following—

  1. (a)
    allow an entitled person to inspect the copy;
  1. (b)
    give an entitled person a certified copy of the copy on payment of the person’s reasonable expenses of giving the certified copy.

(3) A person who has possession or control of a will, or a copy of a will, of a deceased person must produce it in court if the court requires it.

(4) In this section—

certified copy

  1. (a)
    of a will—means a copy of the will that has a statement on it, signed by the person giving the copy, that the copy is a true copy of the will; or
  1. (b)
    of a copy of a will—means a copy of the copy of the will that has a statement on it, signed by the person giving the copy, that the copy is a true copy of what it purports to be.

entitled person, in relation to a will, means—

  1. (a)
    a person mentioned in the will, whether as beneficiary or not and whether named or not; or
  1. (b)
    a person mentioned in any earlier will of the testator as a beneficiary and whether named or not; or
  1. (c)
    a spouse, parent or issue of the testator; or
  1. (d)
    a person who would be entitled to a share of the estate of the testator if the testator had died intestate; or
  1. (e)
    a parent or guardian of a minor mentioned in the will or who would be entitled to a share of the estate if the testator had died intestate; or
  1. (f)
    a creditor or other person who has a claim at law or in equity against the estate; or
  1. (g)
    a person who may apply for an order under section 41.

parent see section 61A.

will includes—

  1. (a)
    a purported will or revoked will; and
  1. (b)
    a part of a will, purported will or revoked will.”
  1. [14]
    The applicant particularly relies on the definition of ‘will’ which is a non-inclusive definition  which includes a purported will or revoked will and a part of a will, purported will or revoked will.  It is broad in its terms.
  2. [15]
    The section is not confined to a solicitor who has possession or control of a will, but rather, a person.  That would suggest that it is a document which could be regarded as falling within the definition of ‘will’ on its face, which would be apparent to non-lawyers.  According to the explanatory memorandum for the 2006 Act which contained the amendment with respect to s 33Z, the section is intended to ensure that persons with a proper interest can see the contents of a will, prior to the will’s admission to probate or in the event that probate is not sought and the estate is administered informally.  The explanatory memorandum further provides:

“By virtue of the definition of “will” in subsection 33Z(4), the entitlement extends to a part of a will and to purported wills and revoked wills and parts thereof. These testamentary instruments can be significant to the determination of questions concerning, for example, the testator’s capacity, undue influence or interpretation.”

  1. [16]
    The Law Reform Commission Report reviewed the proposed s 66A of the Administration and Probate Act 1958 (Vic), which was generally accepted by the national committee.  In relation to the documents to which access should be available, the Law Reform Commission Report states that:[1]

“The difficulty with the wording of the proposed provision is that it does not necessarily include either testamentary documents that have been revoked, or documents the testamentary nature of which may be disputable.”

  1. [17]
    The Report continues that:

“An executor is not permitted by the Probate Court to pick and choose which testamentary instruments he or she should bring to Court for probate purposes.  For the same reason, the national committee is of the view that a revoked or doubtful testamentary instrument should be included in this rule.  As a result, the national committee recommended inserting the words in the proposed model of s 66A ‘including a revoked will, or copy of any such will and any part of such will’ the Victorian proposal already referred to a purported will.  The Law Reform Commission endorsed the model provision that had been recommended by the national committee and that it be adopted in the Succession Act.”

  1. [18]
    Unfortunately s 33Z has not been the subject of any real analysis in case law today.

Consideration

  1. [19]
    Will instructions may constitute a will under s 10 of the Act if there is clear evidence that the deceased, when signing the will instruction sheet, intended the document to be his or her will and it is executed as required by s 10 of the Act.[2]   Section 18 of the Act however, provides that a document which purports to state the deceased’s testamentary intentions but has not been executed as required under the Act may be determined to be a will or part of a will.  Ascertaining whether that is so usually involves evidence being provided of the person’s testamentary intentions, including evidence of statements made by the person.
  2. [20]
    In order to satisfy the Court that will instructions may form a will wholly or in part under s 33Z of the Act, the applicant must establish that the document was or may have been intended to be the person’s will, an alteration to the person’s will or part of their will. The reference to “purported” broadens the definition of “will” so as to include a document which may not satisfy the formal requirements of a will but on its face purports to state the testamentary intentions of a deceased person. That is consistent with the legislative intention set out in the explanatory memorandum.  A document may purport to be a will if it sets out the testamentary intentions of the deceased, even if the formal requirements under Part 2 of the Act are not met.
  3. [21]
    It is evident that the will instruction sheet in the present case does not satisfy the requirements under s 10 of the Act, not having been executed or witnessed.  At best, the incomplete instructions could be said to form part of a “purported” will, insofar as they could reflect the testamentary intentions of Mr Spottiswood. However, while will instructions may be determined by the Court to be a will, that was not apparent on the face of the documents, which the respondent had completed with Mr Spottiswood, given that not only was the Will Instruction sheet not signed, but the No Immediate Will Acknowledgment was signed by Mr Spottiswood.
  4. [22]
    In my view, s 33Z does not apply to a document which, even if it on its face arguably sets out testamentary intentions at least partially, is accompanied by a document completed at the same time by the deceased specifically signing a “No will acknowledgment” stating that “ I do not wish the Will Instructions Checklist to be my will.”  In those circumstances, the document does not purport to be a will nor is it one that can be described as a doubtful testamentary instrument. That is not to decide that the partially completed will instructions in combination with the other evidence cannot still be determined to represent Mr Spottiswood’s testamentary intention.  However, the intent of s 33Z is not to require parties to engage in a process similar to that required under s 18 of the Act to determine whether it is a document that should be produced or not.
  5. [23]
    This interpretation is supported by the fact that the purpose of s 33Z of the Act is to provide an informal, ready mechanism for an applicant to get access to a will or purported will or part thereof or revoked will prior to the granting of probate or, in the event that probate of the will is not to be taken out, administered informally.
  6. [24]
    In the circumstances, Ms Saltmer would not have been successful in the application. As costs follow the event, Rennick Lawyers is entitled to its costs, but not on an indemnity basis. While the respondent contended that the Ms Saltmer should have always sought letters of administration, I do not consider that the present application was not reasonably made and reasonably arguable.  Costs should only be paid on a standard basis. I do not consider that the costs should be ordered to be paid out of the estate.

Orders

  1. [25]
    I dismiss the application and order the applicant to pay the respondent’s costs of the application. 

 

Footnotes

[1]  Law Reform Commission Report, Ch 8, p 124.

[2]Re Gloria May Limpus (deceased) [2013] QSC 66.

Close

Editorial Notes

  • Published Case Name:

    Saltmer v Rennick Lawyers Pty Ltd

  • Shortened Case Name:

    Saltmer v Rennick Lawyers Pty Ltd

  • MNC:

    [2018] QSC 307

  • Court:

    QSC

  • Judge(s):

    Brown J

  • Date:

    18 Dec 2018

  • White Star Case:

    Yes

Litigation History

Event Citation or File Date Notes
Primary Judgment [2018] QSC 307 18 Dec 2018 Application for production of a document contended to be the will of a deceased pursuant to s 33Z of the Succession Act 1981 (Qld) refused: Brown J.

Appeal Status

No Status