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Re Quinn

 

[2019] QSC 99

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

In The Estate of Leslie Wayne Quinn (deceased) [2019] QSC 99

PARTIES:

Leanne May Quinn
(applicant)

FILE NO/S:

BS 11320 of 2017

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

17 April 2019

DELIVERED AT:

Brisbane

HEARING DATE:

22 March 2019, further written submissions 8 April 2019

JUDGE:

Lyons SJA

ORDER:

The order of the court is that:

  1. It is declared that, pursuant to section 18 of the Succession Act 1981 (Qld), the video recording made by Leslie Wayne Quinn, deceased on his iPhone dated 26 June 2011, as contained in a copy on the CD tendered at the hearing on 22 March 2019, (“the Video Recording”) forms a Will of the deceased.
  2. Subject to the formal requirements of the Registrar, a grant of letters of administration with that Will dated 26 June 2011 of Leslie Wayne Quinn, deceased, with a copy annexed of the transcript which is exhibit ‘LMQ-1’ to the affidavit sworn by Leanne May Quinn (“the Applicant”) and filed in this proceeding on 30 October 2017, be made to the Applicant.
  3. The Applicant’s costs of this application on the indemnity basis be paid out of the deceased’s estate.

CATCHWORDS:

SUCCESSION – WILLS – MAKING OF A VALID WILL – INFORMAL WILLS – LACK OF FORMALITIES – GENERALLY – EXECUTION – application pursuant to s 18 Succession Act 1981 (Qld) to dispense with execution requirements for a will – where the decease took his own life - where deceased recorded a video on his iPhone stating it to be his last will - where will is not in accordance with s 10 of the Succession Act – where s 18 of the Succession Act permits the court to admit a document to probate if satisfied it embodies the testamentary intentions of the deceased, despite non-compliance with legislative requirements – whether the video recording is a document – whether the video recording embodies the testamentary intentions of the relevant deceased – whether the deceased at the time of making the video intended for the document to operate as his will – whether the video recording of the deceased’s will is an informal will.

Acts Interpretation Act 1954 (Qld), s 36

Succession Act 1981 (Qld), s 9, s 10, s 18

Uniform Civil Procedure Rules 1999 (Qld), r 603

Banks v Goodfellow (1870) LR 5 QB 594

Cahill v Rhodes [2002] NSWSC 561

Frizzo v Frizzo [2011] QSC 107

Hatsatouris v Hatsatouris [2001] NSWCA 408

In the Will of Dianne Margaret Cardie [2013] QSC 265

Lindsay v McGrath [2016] 2 Qd R 160

Mahlo v Hehir [2011] QSC 243

Mellino v Wnuk & Ors [2013] QSC 336

Re Estate of Carrigan (dec’d) [2018] QSC 206

Re Estate of Wai Fun Chan Deceased [2015] NSWSC 1107

Sadleir v Kahler [2019] 1 Qd R 52

COUNSEL:

R D Williams for the applicant

SOLICITORS:

Bell Legal Group for the applicant

Background

  1. [1]
    Leslie Wayne Quinn took his own life at the age of 53 in June 2015. Four years before his death on 26 June 2011 he made a video recording on his iPhone which he called his Will. It recorded his wishes in relation to the disposition of his property after his death.
  2. [2]
    That recording does not meet the formal requirements of a valid Will.
  3. [3]
    Leanne May Quinn seeks a declaration that the video recording is the Will of Mr Quinn and a Grant of Letters of Administration with a copy of the transcript of the recording attached. The evidence indicates that the deceased suffered from depression for several years leading up to his death and whilst he sought medical help at times, he had ceased taking medication. Mrs Quinn who is a registered nurse was the deceased’s wife of twenty years and the mother of two of his three sons. She had separated from him in 2013, two years before his death but they had not divorced.
  4. [4]
    Mr Quinn was survived by his three children: Jacob Charles Aspland, Samuel William Quinn and Callan David Quinn who were aged 23, 19 and 18 at the time of his death. Jacob was the child of a previous relationship.
  5. [5]
    Mr Quinn’s estate is modest and has an estimated value between $58,611.86 and $108,611.86.  The main assets of the estate are two blocks of land which are at Yuleba and Russel Island. A Grant of Representation is needed in order to transfer and deal with both those properties. The liabilities are estimated between $36,011.00 and $86,011.00.
  6. [6]
    The Applicant was paid death benefits from Mr Quinn’s superannuation fund totalling $60,949.82 in the exercise of the trustee’s discretion on 28 July 2016 and those funds do not form part of the estate.

The video recording

  1. [7]
    The Applicant has filed two affidavits in this proceeding and she swears that on or around 26 June 2011, about four years before he died, Mr Quinn made a video recording on his iPhone which he showed to her shortly after recording it. At the time he told her that he intended it to be his Will in the event of his death.
  2. [8]
    The Applicant located Mr Quinn’s iPhone following his death but was unable to access the iPhone as it is password protected. She is not aware of anyone knowing the password or where to obtain the password. Accordingly neither she nor her solicitors have been able to access the iPhone. She has discovered, however, a copy of the recording on the hard drive of Mr Quinn’s computer which had been synchronised from his iPhone. She swears that despite a search she did not locate any other video that appeared to be a Will. She copied the video to a CD and provided the CD to her solicitors.
  3. [9]
    A transcript of the video recording was produced by Bell Legal Group.[1]
  4. [10]
    The Applicant is not aware of the existence of any other Will of Mr Quinn. The Applicant searched the contents of the home and could not locate a document that appeared to be a Will. Further enquires to the Public Trustee of Queensland, the Queensland Law Society, Proctor Magazine and the two banks at which Mr Quinn held accounts have confirmed they have no record of or do not hold a Will of Leslie Wayne Quinn.

This Application

  1. [11]
    Section 10 of the Succession Act 1981 (Qld) (the Act) sets out the formal requirements for a Will and includes requirements not only that it be in writing but that it be signed in the presence of two witnesses who are present at the same time. The video recording therefore does not meet those formal requirements. Counsel for the Applicant submits that the video recording may be admitted to probate as an ‘informal Will’ if the court finds that it meets the requirements of s 18 of the Act.
  2. [12]
    The Applicant is seeking a declaration pursuant to s 18 that the video recording made by Mr Quinn on his iPhone date 26 June 2011, as contained in a copy on the CD forms a Will of the deceased.
  3. [13]
    If the court determines that the video recording constitutes a Will of the deceased then the effect of the Will is that the whole of Mr Quinn’s estate is gifted to the Applicant. As the Will does not name an executor, the appropriate form of grant of representation is letters of administration with the Will.  I accept that pursuant to r 603(1)(d) of the Uniform Civil Procedure Rules (UCPR), the Applicant is the person who has the highest priority to apply for such grant.
  4. [14]
    Alternatively, if the Court is not satisfied that the requirements of s 18 are met the Applicant seeks a grant of letters of administration on intestacy. As no other document has been located that may be a Will of the deceased, then Mr Quinn died intestate. Pursuant to Part 1 of Schedule 2 of the Act, the persons entitled to the deceased’s estate on intestacy would be the Applicant and Mr Quinn’s three children. The Applicant submits the appropriate form of grant would be letters of administration on intestacy.
  5. [15]
    The Applicant submits that in either outcome the devolution of the estate and the person who has the highest priority to apply for grant of representation will be the same.

Service

  1. [16]
    I am satisfied that the affidavit material establishes that Mr Quinn’s three sons were personally served. Whilst Jacob Aspland has indicated that he opposes the application he has provided no material and did not wish to be heard at the Application. Accordingly, there is no indication of any alternative evidence that could affect the outcome of the Application.

Relevant Law

  1. [17]
    Pursuant to amendments to the Succession Act 1981 in 2006, s 18 of the Act replaced s 9(a) and (b) of the existing Act and provided that the Court will be able to admit a document to probate if satisfied that the document embodies the testamentary intentions of a deceased person, even though it does not comply with the formal requirements for executing, altering or revoking a will. Section 18 provides that the Court may dispense with the execution requirements for a will as follows:

“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
  1. purports to state the testamentary intentions of a deceased person; and
  2. has not been executed under this part.
  1. 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.
  2. In making a decision under subsection (2), the court may, in addition to the document or part, have regard to
  1. any evidence relating to the way in which the document or part was executed; and
  2. any evidence of the person’s testamentary intentions, including evidence of statements made by the person.
  1. Subsection (3) does not limit the matters a court may have regard to in making a decision under subsection (2).
  2. This section applies to a document, or a part of a document, whether the document came into existence within or outside the State.”
  1. [18]
    The history of the background to the 2006 amendment to the Succession Act 1981 was outlined by Atkinson J in Sadleir v Kahler :[2]

“Before the Succession Act 1981 was amended, the court had a limited power to admit a testamentary instrument to probate if the court was satisfied that the instrument expressed the testamentary intention of the testator and was in substantial compliance with the prescribed formalities.

Section 18 gave effect to the recommendations of the Consolidated Report to the Standing Committee of Attorneys General on the Law of Wills by the National Committee for Uniform Succession Laws. The Queensland Law Reform Commission observed that the requirement that there must be “substantial compliance” had proven to be so great a stumbling block that the provision had had poor success. The recommendation was made that the new power of dispensation be uniform across Australia. It followed a model first introduced in South Australia in 1975 and refined in subsequent model legislation.

The matters that will concern the court when there is an application under s 18 Succession Act 1981 include:

  1. Is there a document by the deceased person?
  2. Does the document fail to comply with the execution requirements found in Pt 2 Div 2 of the Succession Act 1981?
  3. Does the document purport to state the testamentary intentions of the deceased person?
  4. Is the court satisfied that the deceased person intended the document to form the person’s Will?

The remedial nature of this legislation has meant that a liberal approach has been taken to the construction of s 18. Examples of documents that have been declared to be Wills which can be admitted to probate have included: an electronic version of a Word document; a copy of a Will; documents created on an iPhone; a DVD; unwitnessed handwritten amendments to a previous Will; and even an unsent text message.” (footnotes omitted)

  1. [19]
    Accordingly having already determined that the execution requirements of s 10 of the Act have not been fulfilled, the three remaining questions which need to be determined are as follows;
  1. (1)
    Was there a document by the deceased Leslie Wayne Quinn?
  2. (2)
    Did that document purport to embody the testamentary intentions of Leslie Wayne Quinn?
  3. (3)
    Did Leslie Wayne Quinn by some act or words, demonstrated that it was his then intention that the document should, without more on her, or his, part, operate as her, or his, Will?

Is there a document?

  1. [20]
    A document that has not been executed in accordance with s 10 of the Act can therefore form a will for the purposes of s 18(2) if it fits within the definition of a document. The definition of ‘document’ is contained in s 36 of, and the Schedule to, the Acts Interpretation Act 1954 (Qld):

“document includes

  1. any paper or other material on which there is writing; and
  2. any paper or other material on which there are marks, figures, symbols or perforations having a meaning for a person qualified to interpret them; and
  3. any disc, tape or other article or any material from which sounds, images, writings or messages are capable of being produced or reproduced (with or without the aid of another article or device).”
  1. [21]
    In Mellino v Wnuk & Ors,[3] Dalton J was satisfied that having regard to the terms of s 18 itself and also to the cases which have interpreted it, including the New South Wales Court of Appeal decision in Hatsatouris v Hatsatouris,[4] that a DVD was a document within the meaning of the section, and that the document embodied or was meant to embody the testamentary intentions of the deceased man.  In Re Yu (deceased)[5] Peter Lyons J held that “something created and stored on an iPhone” satisfied the definition as follows;

“….Section 5 of the Succession Act defines a document for the purposes of section 18 of the Act, specifically, as something so defined in section 36 of the Acts Interpretation Act 1954 (Qld). Section 36 of the Acts Interpretation Act defines a document to include any disc, tape or other article, or any material from which writings are capable of being produced or reproduced, with or without the aid of another article or device.

In Alan Yazbek v Ghosn Yazbek & Anor [2012] NSWSC 594, Slattery J held that a Microsoft Word document created on a laptop computer was a document for the purposes of New South Wales legislation substantially similar to that which I am asked to consider in the present case. Both by reference to his Honour’s judgment, in which he cited a number of authorities (see paragraphs 79 – 81) and by reference, similarly, to the language of the definition in section 36 of the Acts Interpretation Act, I am satisfied that the record on the iPhone of the document, which I have mentioned a short time ago, is a document for the purposes of section 18 of the Succession Act.”

  1. [22]
    I am satisfied that the recording on the iPhone is clearly a document within the meaning of s 18 of the Act.

Which document is the relevant document?

  1. [23]
    I do not however have the original recording on the iPhone. I have a CD containing a copy of the iPhone recording which was captured on Mr Quinn’s computer. It would seem clear from the evidence before me that the video recording located on Mr Quinn’s computer and the CD containing the electronic file of the video recording are copies of the original video recorded on Mr Quinn’s iPhone. It is uncertain whether the original video file still exists given that it could only be discovered with forensic testing on the device. I accept that the expense of such testing is not warranted given the size of the estate.
  2. [24]
    I viewed the video recording on the CD during the hearing of the application. It would seem to me that Mr Quinn intended the original iPhone recording would form his Will and not the copy which was uploaded to his computer at some stage. 
  3. [25]
    It is necessary to identify with some precision the particular document in respect of which the s 18 declaration is sought. That was made clear in the decision of Mahlo v Hehir[6] where McMurdo J considered the meaning of the term ‘document’ and had to determine whether a typed Word document on the deceased’s computer was such a document. Whilst he held that ‘the electronic document was a document of the kind within s 18(1)’ he was not satisfied that the requirements of s 18(2) were met in assessing the Word document found on the deceased’s laptop. In this regard he was not satisfied that the electronic document was intended by Dr Mahlo to “form” her will as follows.[7]

“I am not satisfied that Dr Mahlo intended that the electronic document should form her will. The essential reason for that conclusion is that she knew that in making a new will, she had to do more than type or modify a document upon her computer. She understood that she had to sign it. As I have found, she did sign a paper document which she described to her father as her new will.”

  1. [26]
    His Honour considered that in the circumstances of that case the claim had to be dismissed because there was no alternate claim in relation to a lost or missing Will or a claim to have the paper document which could not be found to be declared to be her Will. In the present case the s 18 declaration is sought in relation to a copy of the Will contained on the CD.
  2. [27]
    In this regard it should be noted that the Court’s jurisdiction to admit to probate a copy of a lost or missing will is derived from the common law and not s 18. The common law principles are expressed in Cahill v Rhodes as follows:[8]

“First, it must be established that there actually was a will, or a document purporting to embody the testamentary intentions of a deceased person; second, it must be shown that the document revoked all previous wills, third, the presumption that when a will is not produced it has been destroyed must be overcome, fourth, there must be evidence of its terms, and fifth, there must be either evidence of due execution or that the deceased person intended the document to constitute his or her will.”

  1. [28]
    This was made clear in the decision of In the Will of Dianne Margaret Cardie by de Jersey CJ as follows;[9]

[16] The assumption may from time to time have been made that the authority to admit a copy will to probate resides in s 18 of the Succession Act 1981. I would not consider that to be authority for admitting a copy of a missing will to probate.

[17] Section 18 relates to dispensation with requirements as to execution, and it says, in sub-section (2), in relation to an inadequately executed document:

(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.” (emphasis added)

[18] Here, the testator did not intend the copy to be her will. She intended the original to be her will.

[19] The authority to admit a copy to probate derives from the common law, not section 18. That common law jurisdiction pre-dated, and has survived, ameliorative statutory provisions such as section 18.

[20] I deal seriatim with the principles applicable to the admission to probate of a copy of a missing will:

  1. This copy demonstrates that as at its date, 21 April 1989, there was an original will.
  2. That document specifically provided for the revocation of all prior wills.
  3. The absence of the original will does not warrant the presumption that the original was destroyed: there is no evidence that the testator deposited the original will with anyone else, so that she should be seen as likely having retained it herself; her condition in life supported an inference that she probably mislaid or lost it having regard to her state of health, she probably would not have been in a position to make another will, certainly as from the commencement of the Public Trustee’s administration in mid-2002; and there was no change in the circumstances which bore on her likely testamentary intentions as between 1989 and 2002. These circumstances rebut the presumption of revocation.
  4. The terms of the will evidenced by the copy are clear and comprehensive.
  5. Evidently from that copy, the original was properly executed.

[21] I was therefore prepared to admit the copy to probate, and I did so on the usual basis, that is, until the original will or more authenticated evidence of it should be brought into and left in the Registry.”

  1. [29]
    I am satisfied therefore that the document which is to be considered in relation to this s 18 application is in fact a copy of the original document. I shall now turn to a consideration of whether that document expressed Mr Quinn’s testamentary intentions and whether he wished it to operate as his will.

Does the video recording purport to state the testamentary intention of Mr Quinn?

  1. [30]
    A transcript of the video recording is as follows;[10]

“It’s Sunday, 26th of June, 2011.

This is the, my last will, I am making by video.

In the event of my death, I would like all my goods, my interests in property, 77 The Domain and Russell Island, a block of land on Russell Island, corner of Oxley and Darling Street, I’d like that, my share of those to go to my wife, Leanne Quinn.

Anything, any, any money, money that I have, cash, I’d like that to go to my wife Leanne, Leanne Quinn.

All of, any goods that I have or any money owing to me for any reason, I’d like, I’d like to leave that to my wife, Leanne Quinn. Also my superannuation, currently in Tasplan, I leave that to my wife.

So in essence, I am leaving everything to my wife, Leanne Quinn.

As far as my, what I request for my funeral, I would like a direct cremation. I have listed on my Driver’s Licence some organs that I’d like to leave, donate to people. But I would like to recant that, I no longer wish to do that. I would like to be cremated in my entirety and I’d like, I’d prefer a direct cremation. I would like my ashes to be disposed of by the funeral service. I do not want a memorial or funeral. I do not want, I especially do not want anybody to own my ashes after my death.

That, I think is basically it so, this is my only Will. I may make a copy of this but it’ll be a written copy of this but it will be exactly the same as this.

Ok. Thank you very much.”

  1. [31]
    In my view there can be no doubt that Mr Quinn made the recording to make clear what his intentions were in relation to the disposal of his possessions after his death. He also gave instructions in relation to his cremation and the disposal of his ashes. Mr Quinn called the recording his ‘last will’ in his opening remarks and spoke about the distribution of his property ‘after his death’. He therefore understood it was to operate after his death. The recording also sets out his principal assets namely his two properties at Russell Island and Yuleba. Mr Quinn also made specific reference to the disposal of ‘any money’ and ‘any goods’ although he did not make specific reference to his 1996 Commodore which was of nominal value. Although he made reference to his superannuation benefits, those funds do not in fact form part of his estate. I accept that this is a common factual misunderstanding and in no way affects his understanding of the nature and extent of his estate.
  2. [32]
    I also infer that he was well aware of the persons who might have a claim on his estate namely his three sons. Having considered the recording I consider that Mr Quinn expressed a firm intention to leave all of his assets to the Applicant. Given the relatively young age of his sons at the time of the recording such an intention is entirely logical in the circumstances particularly given the modest size of his estate and the need to pay any debts that were outstanding at the time of his death. Mrs Quinn’s affidavit sets out the circumstances of her relationship with Mr Quinn and I accept that they remained in touch and on good terms particularly given her ongoing care of his two youngest sons.
  3. [33]
    Whilst Mr Quinn struggled with depression there is no indication in the recording that he was affected in any way at that time. Indeed he was bright, articulate and alert and in fact appeared to be cheerful in the recording. He was obviously at work at the time and it would appear he made the recording during a break. I consider that the terms of the recorded message are rational and there is nothing on the recording that causes me to have the slightest doubt that he had testamentary capacity at the time he made the recording. The fact that a person subsequently commits suicide does not necessarily mean that a person lacks testamentary capacity, particularly here where it occurred some four years later.[11]
  4. [34]
    The classic test for testamentary capacity was set out in Banks v Goodfellow, [12] where Cockburn CJ outlined the essential requirements for testamentary capacity as follows:[13]

“It is essential to the exercise of such power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of rights, or prevent the exercise of his natural faculties – that not insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”

  1. [35]
    These principles were restated in modern language by Applegarth J in Frizzo v Frizzo [14] as follows;

“Of course, the onus of proving that the testatrix had testamentary capacity at the time she made her will lies on the party propounding that will. It is a question determined on the balance of probabilities, based on the whole of the evidence. A presumption of validity arises where the proponent demonstrates a duly executed will that is rational on its face. The party impugning that will must then displace the prima facie case with “clear evidence…that the illness of the [testatrix] so affected [her] mental faculties as to make them unequal to the task of disposing of [her] property”. While extreme age or grave illness are circumstances that will attract the vigilant scrutiny of the Court, neither is, of itself, sufficient to establish incapacity. The question always is whether those or other circumstances so affected the testatrix’s faculties as to render her unequal to the task of disposing of her property.” (footnotes omitted)

  1. [36]
    The presumption of testamentary capacity however, does not arise in the case of an informal will because it has not been executed in accordance with the formal requirements of the Succession Act . The onus of proving testamentary capacity where there is an informal will lies on the party who wishes to rely on the informal will.
  2. [37]
    In the case of an informal Will the Court needs to consider testamentary capacity in two respects. First, because in order for a declaration to be made pursuant to s 18(2) the Court needs to be satisfied that the deceased intended that a particular document form his Will. Accordingly the Court must enquire into and be satisfied that the deceased has sufficient mental capacity to form that intention because if a person lacks capacity to make a will then the Court could not be satisfied that the deceased intended the document to be his or her Will. The second way the Court needs to consider testamentary capacity is that if the Court is satisfied that the document in question constitutes a Will of the deceased then in order for it to be admitted to probate the Court must be satisfied that the deceased had capacity at the time it was made and that the applicant has discharged the onus of establishing the other mental elements required for a valid Will such as not being the product of undue influence.
  3. [38]
    In practice the Court generally considers these questions together and I agree with the decision of Boddice J in Re Estate of Carrigan (dec’d) in this regard:[15]

“The discharge of that onus often arises as part of a consideration of all of the facts and circumstances, when determining the three factual considerations necessary for satisfaction of the requirements of s 18(2) of the Act. A satisfactory discharge of the onus may be met notwithstanding the absence of detailed medical or other evidence. As was observed by Lindsay J, in Re Estate of Wai Fun Chan, Deceased, an informal Will, which is rational on its face and which was created using a patently rational process, may allow the necessary inference that the maker of the informal Will was mentally competent and that he or she knew and approved of the contents of that Will.” (footnotes omitted)

  1. [39]
    I also concur with the views expressed by Lindsay J in the NSW decision of Re Estate of Wai Fun Chan Deceased :[16]

“By its very nature, an informal will (that is, a testamentary document not executed in accordance with section 6) does not, without fundamental reservations, attract a traditional “presumption” of capacity or knowledge and approval arising from “due execution”.

However, a reference to a “presumption” of this character in probate discourse is more empirical than prescriptive. It is an aid to the investigation of questions of fact, and to the determination of disputed questions of fact, in a world of imperfect knowledge. It might better be understood as an inference commonly drawn from established facts: Calverley v Green (1984) 155 CLR 242 at 264.

So understood, the wisdom probate “presumptions” encapsulate may be able to be harnessed in dealing with informal wills.

For example, if (as in the present proceedings) an informal will is rational on its face, and the process of its creation is equally, patently rational, common experience would lead most observers to infer (in the absence of some other fact) that the will-maker was mentally competent and that he or she knew and approved of the contents of the will.”

  1. [40]
    In the circumstances of this case I consider that Mr Quinn, at the time of creating the video recording, understood the nature of the act of creating a Will and its effects and understood the extent of the property of which he was disposing. In the circumstances of this case I am satisfied the inference to be drawn from the facts before me are that not only did the video recording contained in the CD set out Mr Quinn’s testamentary intentions but also that he had testamentary capacity at the time he made it. I consider it is rational on its face, and common experience would lead most objective bystanders to conclude, that Mr Quinn was mentally competent and that he knew and approved the contents of the will. 

Was it intended that the document operate as a will?

  1. [41]
    The video recording was made four years before Mr Quinn died and before he and his wife separated. No other documents have been found despite extensive searches. The remaining question is whether Mr Quinn intended this recording was to operate as his Will. In Lindsay v McGrath, [17] Boddice J stated:[18]

“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. 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 to document to operate to dispose of the deceased’s property upon death.”

  1. [42]
    In this regard I note the following;
    1. The video recording is dated.
    2. It then commences with the words “This is the, my last will, I am making by video”.
    3. It disposes of his entire estate except an item of minimal value.
    4. It contains directions in relation to the disposal of his body.
    5. The original document did exist as Mr Quinn showed it to his wife after he had recorded it.
  2. [43]
    It is usual practice for a Will to contain a clause which expressly revokes all previous Wills and s 13 of the Act sets out the ways in which a Will can be revoked which includes the making of a later Will. In this case, no earlier Will of Mr Quinn has been found. There is in fact no evidence that there ever was a previous Will of Mr Quinn’s which needed to be revoked. In any event, it has been held that where a later Will deals with a testator’s entire property “all prior testamentary instruments are revoked”[19]. In my view the recording deals with the entire estate and accordingly it impliedly revokes all earlier Wills.
  3. [44]
    There is no evidence that Mr Quinn intended to revoke or alter the terms of his Will in the period between the date of the recording and his death.
  4. [45]
    Accordingly I am satisfied as follows;
    1. A declaration should be made pursuant to s 18(2), that the video recording made by the deceased on his iPhone dated 26 June 2011, as contained in a copy on the CD, constitutes a Will of the deceased;
    2. There is sufficient evidence for the Court to be satisfied that the deceased had testamentary capacity at the time of making the video recording on his iPhone, and for a grant to be made, accordingly, of letters of administration with the Will, annexing a copy of the Transcript; as Lindsay J said in Re Estate of Wai Fun Chan, Deceased:[20]

    “Where a video will is admitted to probate the Court will ordinarily require that a verified transcript of the will-maker’s statement be produced to the Court for incorporation in the instrument recording the Court’s grant of probate or administration. This serves the governing purpose of the probate jurisdiction, allowing for the character of a grant as an instrument of title to property (Estate Kouvakas [2014] NSWSC 786 at [228]-[233]), by rendering the will available to the public and interested parties in a conventional, accessible form.”

    1. Such grant should be made to the Applicant, who is the person who has highest priority under r 603(1)(d) of the UCPR.

    Footnotes

    [1] Affidavit of L M Quinn, Exhibit LMQ-1.

    [2] [2019] 1 Qd R 52 at [15]-[18].

    [3] [2013] QSC 336.

    [4] [2001] NSWCA 408 at [56].

    [5] [2013] QSC 322 at [4]-[5].

    [6] [2011] QSC 243.

    [7] At [41].

    [8] [2002] NSWSC 561.

    [9] [2013] QSC 265 at [16]-[21].

    [10] Affidavit of L M Quinn, Exhibit LMQ-1.

    [11] Re Estate of Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 707; see also Re Yu [2013] QSC 322 and Mellino v Wnuk & Ors [2013] QSC 336. 

    [12] (1870) LR 5 QB 594.

    [13] At 565.

    [14] [2011] QSC 107 at [23].

    [15] [2018] QSC 206 at [18].

    [16] [2015] NSWSC 1107 at [18]-[21].

    [17] [2016] 2 Qd R 160.

    [18] At [59] with whom Gotterson J agreed.

    [19] Estate of Francis Collins [2000] NSWSC at [5].

    [20] [2015] NSWSC 1107 at [25].

Close

Editorial Notes

  • Published Case Name:

    In The Estate of Leslie Wayne Quinn (deceased)

  • Shortened Case Name:

    Re Quinn

  • MNC:

    [2019] QSC 99

  • Court:

    QSC

  • Judge(s):

    Lyons SJA

  • Date:

    17 Apr 2019

  • White Star Case:

    Yes

Litigation History

Event Citation or File Date Notes
Primary Judgment [2019] QSC 99 17 Apr 2019 Application for declaratory relief and a grant of letters of administration; declaration pursuant to s 18 of the Succession Act 1981 (Qld) that video recording made by the deceased forms the Will of the deceased; grant of letters of administration of that Will granted and be made to the applicant: Lyons SJA.

Appeal Status

No Status