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Queensland Judgments
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  •   Notable Unreported Decision

Re GEW

 

[2020] QSC 119

SUPREME COURT OF QUEENSLAND

CITATION:

Re GEW [2020] QSC 119

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

30 March 2020

DELIVERED AT:

Brisbane

HEARING DATE:

30 March 2020

JUDGE:

Lyons SJA

ORDER:

  1. Order as per amended draft

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – EXECUTION – INFORMAL DOCUMENT INTENDED TO BE A WILL – where an application for probate of an Informal Will pursuant to section 18 of the Succession Act 1981 (Qld) was brought – where the Informal Will was a suicide note made by the deceased shortly before he ended his life – where the Informal Will was not signed or witnessed but was in the deceased’s handwriting, was in an envelope addressed to the applicant (his eldest daughter) dated 1 July 2019 and was found with the deceased’s body – where the deceased was survived by his second wife (the first respondent) from whom he had separated, as well as three children (two from his first marriage and one from his second) – where the first respondent was the sole executor and beneficiary of a Will that the deceased made in 2001 – where the deceased had discussed updating his Will with the applicant and had made it clear to her that he wanted to make her the executor, and that his three children were to be the beneficiaries – where the deceased had also told his second daughter that he was giving the applicant the responsibility to divide the estate between the three children – whether the deceased intended his note to form his Will – whether the deceased’s note purported to embody his testamentary intentions – whether the evidence satisfies the Court that either at the time of the document, or some later time, the deceased, by some act or words, demonstrated that it was his intention that the document should, without more on his part, operate as his Will – whether at the time the handwritten note was made the deceased retained testamentary capacity, and knew and approved of its contents – whether the Informal Will ought to be admitted to probate pursuant to s 18 of the Succession Act 

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

Briginshaw v Briginshaw (1938) 60 CLR 336, cited

Hatsatouris v Hatsatouris [2001] NSWCA 408, cited

Lindsay v McGrath [2015] QCA 206, cited

Re Carrigan [2018] QSC 206, cited

COUNSEL:

C Brewer for the applicant

J Otto for the first respondent

L Nevison for the second respondent

SOLICITORS:

Thyne McCartney for the applicant

Robbins Watson Lawyers for the first respondent

Parsons Law for the second respondent

HER HONOUR (delivered ex tempore): This is an application for probate of an Informal Will pursuant to section 18 of the Succession Act 1981 (Qld).  The Will is a suicide note which was made by the deceased shortly before he ended his life, and it was found with his body.  The note is not signed or witnessed.  It is, however, in his handwriting, and was found in an envelope addressed to the applicant, and was dated, on the envelope, 1 July 2019.

I have seen the preliminary Coroner’s report, and it seems that the deceased died sometime between the 1st and the 3rd of July 2019 at the age of 62.  The deceased was an intelligent man.  He was a medical practitioner, and he then completed his PhD in neuroscience in Australia in 1992. Whilst he died sometime between the 1st and 3rd of July, there is, in the affidavit material, a strong body of evidence to indicate that it’s more likely that it occurred around the 1st of July.

He was survived by his second wife from whom he was separated, and had been separated since January 2019.  She is the first respondent.  He has three children, a 27 year old daughter who is a legal practitioner (the applicant), a 22 year old daughter who is completing university studies, and a 16 year old son who is still at school.  The deceased’s son is from his second marriage (to the first respondent) and his daughters are from his first marriage.  All are represented, and his son, being a minor, is represented by a litigation guardian.  There is correspondence indicating that the litigation guardian has been served with the material, and supports the application, but is not appearing because of the intention to save costs.

There is no doubt that the deceased separated from the first respondent in January 2019, and it’s clear that he discussed with his daughter, the applicant, who is a lawyer, options in relation to the divorce.  There were also discussions about wanting to update his Will.  This is set out in the affidavit material.  There is no doubt that the first respondent was the sole executor and beneficiary of a Will that the deceased made in 2001.  In the more recent conversations with the applicant he made it clear to the applicant that he wanted to make her the executor, and that the three children were to be the beneficiaries.  The deceased also told his second daughter that he was giving the applicant the responsibility to divide the estate between the three children.  It is clear that on the 24th of June the deceased asked the applicant to come to the Gold Coast to meet with a family lawyer.  An appointment was made for the 5th of July 2019.  Arrangements were in place for that meeting.

I have read the affidavit of the applicant, and she sets out the circumstances surrounding the matters that most likely led to the death of the deceased.  There were events which occurred which caused great stress to the deceased.  He had previously been made redundant from his university position; he was working part-time, and the events that took place, placed in jeopardy his ability to even work part-time.  He was under stress in relation to the matters referred to in the affidavit material.

The affidavit material indicates on 3 July 2019 the applicant was worried about her father because she hadn’t heard from him for a few days, and he had not been responding to her text messages or answering her calls, which was unusual.  The deceased’s other daughter then contacted police who did a routine check, and found that he was deceased.  He was found in his bed.  He had taken his own life.  As the Coroner’s report indicates the method by which he took his own life was somewhat complicated, and really, in my view, indicated his knowledge of the matters in which he was qualified.  It was not a straightforward way of taking his life but obviously, indicated his knowledge in relation to matters which would facilitate his death.

There was a note beside the bed, addressed to the applicant.  With the note, and next to the bed, were a number of folders containing documents relating to bank accounts, and other accounts as well as amounts in cash.  The documents found with the note included a USB stick containing information, including recent passwords and a list of contact information.  There were then separate manila folders with documents for each of the bank accounts, and his Visa card, and also an ANZ mortgage offset account.  There were documents relating to his overseas travel in 2019, documents relating to Telstra, electricity and water, his car, his assets overseas, including bank statements, and details and property details, and also other documents which related to his divorce settlement, residency and citizenship.

Section 10 of the Succession Act (Qld) provides as follows:

10 How a will must be executed

  1. (1)
    This section sets out the way a will must be executed.
  1. (2)
    A will must be—
  1. (a)
    in writing; and
  1. (b)
    signed by—
  1. (i)
    the testator; or
  1. (ii)
    someone else, in the presence of and at the direction of the testator.
  1. (3)
    The signature must be made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time.

          …”.  

This is an Informal Will; it does not satisfy those requirements.  Section 18 of the Act provides:

18 Court may dispense with execution requirements for will, alteration or revocation

  1. (1)
    This section applies to a document, or a part of a document, that—
  1. (a)
    purports to state the testamentary intentions of a deceased person; and
  1. (b)
    has not been executed under this part.
  1. (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.
  1. (3)
    In making a decision under subsection (2), the court may, in addition to the document or part, have regard to—
  1. (a)
    any evidence relating to the way in which the document or part q              was executed; and
  1. (b)
    any evidence of the person’s testamentary intentions, including evidence of statements made by the person.
  1. (4)
    Subsection (3) does not limit the matters a court may have regard to in making a decision under subsection (2).
  1. (5)
    This section applies to a document, or a part of a document, whether the document came into existence within or outside the State.

As I have indicated, I have read all the material on the file; I have read all of the affidavit evidence.  I have made some reference to that affidavit material in these short ex tempore reasons. The Court can only exercise the power dispensing of the ordinary execution requirements if the Court is satisfied the person intended the document to form the Will.  There have been numerous statements of the relevant principles, in particular Lindsay v McGrath[1] adopted the execution requirements for an Informal Will as outlined by Justice Powell in Hatsatouris v Hatsatouris.[2]

Firstly, there has to be a document.  Secondly, there has to be satisfaction that the document purported to embody the testamentary intentions of the deceased, and thirdly, that the evidence satisfies the Court that either at the time of the document, or some later time, the deceased, by some act or words, demonstrated that it was their intention that the document should, without more on his or her part, operate as his or her Will.  Great care is required to be taken in evaluating the evidence.  The evidence must show that the particular document sets out the deceased’s testamentary intentions or that it is consistent with other statements the deceased made about what they wanted to happen to the property upon death.

The evidence must establish, on the balance of probabilities, that the deceased wanted the particular document to be his or her final Will, and did not want to make any changes to that document.  Documents that are only preliminary or tentative are not considered to be sufficient for the purposes of section 18.  In examining the evidence the Court must have regard to the fact that the evidence is to be evaluated in accordance with the principle in Briginshaw v Briginshaw.[3]

Turning now to an application of the elements to the unsigned Will here, clearly, there is a document.  I have viewed the original document.  I am satisfied that there is a document.  The first element is satisfied.  I am also satisfied, having viewed the suicide note, there is no doubt that the document clearly expressed the deceased’s testamentary intentions.  It is a suicide note.  He was going to take his own life. I am satisfied that when one considers that document he sets out his clear wishes in relation to his three children sharing equally all of his estate.  He then sets out user names, passwords, and there is some detail when I view that document in relation to those details.  There is to be an executor.  The note was in an envelope and addressed specifically to the applicant, and it was dated 1 July 2019.  It was left next to his bed, and he gave clear instructions to the applicant about the user names and passwords, and also instructions as to where the cash was.  He had previously told the applicant he wanted her to be the executor, and that had also been communicated to his other daughter.

I am satisfied that there is an appointment of an executor according to the tenor of the document, and it’s a matter that can be drawn from the words used by the testator.  I am satisfied that the second element is satisfied.  In terms then whether the deceased demonstrated that it was his intention that the document would, without more, operate as his Will, whilst the document itself is not dated it appears to be complete.  He folded it, placed it in the envelope, and addressed it to the applicant.  He dated it, and left it next to the bed upon which he took his life.  I accept that he had made an appointment to make a new Will on 5 July 2019, however, other circumstances overtook that appointment. 

This was not a draft or a trial run but clearly, a document intended to be the final document.  Now, there has to be sufficient proof that at the time the handwritten note was made the deceased retained testamentary capacity, and knew and approved of its contents.  In this case the first respondent disputes testamentary capacity.  The presumption of capacity that applies in relation to a formally valid Will does not apply to an informal document, and testamentary capacity can be established by the context, even in the absence of medical evidence.  Suicide does not of itself raise a presumption of incapacity.

The first respondent, through her counsel, argues that the applicant has not led any direct evidence in relation to the deceased’s testamentary capacity at the time he made the handwritten note, although that is not necessarily fatal.  As the first respondent concedes, the deceased was a highly intelligent man, and there is a presumption of continuance of a mental state.  However, between the 28th of June 2019 and his death, which was just days later, the circumstances were unusual.  There is some evidence that he was drinking at night, and in his own words, according to a Facebook chat, he was drinking heavily. The Coroner’s report also indicates that he was depressed, and drinking heavily, and that was reported to Police on the 3rd of July.  The applicant, after the circumstances of the 28th of June 2019, was distressed, and there is evidence he was crying and scared.  I also accept that the Coroner’s report reveals that on post mortem examination he had a blood alcohol concentration of 0.138 per cent.  In this context, however, I note that post mortem blood concentration levels are notoriously inaccurate, and my understanding is they tend to increase after death.

The deceased had separated from the first respondent.  He had made statements about wanting to change his Will.  It was quite logical that he would wish to change his Will in the way that he has in fact recorded his wishes according to the informal document. The first respondent argues that if the deceased died on 1 July 2019 then it’s more probable than not he was under the influence of alcohol, raising doubts about his testamentary capacity.  It is also argued he was depressed and distressed, and that he may have been deprived of testamentary capacity because of these factors. 

However, having considered the document itself, it would seem to me that the applicant has fulfilled the onus on her in establishing testamentary capacity.  When I consider that document it is clear that it is logical, consistent, and contains detail.  I viewed his handwriting; it is legible.  It is not in any way erratic.  It is, as I said, internally consistent and contains details.  It covers all of the matters that he needed to cover.  It would seem he went to great efforts to make sure everything that his daughter needed to know about was set out in the material.

In all of the circumstances I am satisfied that that document clearly shows that he intended that his three children share things equally, and he has set out all of the material which indicated he understood fully all of his assets.  And I also take into account the statements by Justice Boddice in Re Carrigan[4] that:

“In determining…factual considerations, evidence of testamentary capacity is relevant, as a presumption of testamentary capacity does not exist in the absence of a formally executed Will. The onus of proving testamentary capacity, in the case of an informal will, lies on the party seeking to convince the Court the deceased intended that informal document to constitute his or her Will.”

The discharge of that often arises as part of a consideration of all of the facts and circumstances when determining the three factual considerations, and a satisfactory discharge of the onus can be met, notwithstanding the absence of detailed medical or other evidence. I am satisfied that the Informal Will is rational on its face.  It was created using a rational process, and I therefore conclude that the necessary inferences that the maker of the Will, in this case, was mentally competent, and that he knew and approved the contents of the Will. 

As I said I am satisfied that in all of the circumstances the orders should be made as sought by the applicant.  The Will should be construed that on the proper construction of the words “share it equally amongst you”, those words are to be read as a gift of the whole of the estate to the three children equally.  The meaning is clear, and I am satisfied that at the time he made his Will that was his intention.

In all of the circumstances I am satisfied all three limbs of the test have been satisfied.  Probate should be granted of the Informal Will.  There should be an order in terms of the amended draft which indicates that the caveat filed on 15 November 2019 is to be set aside. 

I further order that pursuant to section 18 of the Succession Act 1981 (Qld), page one of the original Informal Will be admitted to probate, and that subject to the formal requirements of the Registrar, letters of administration with the Will issued to the administrator, and the duly appointed attorney of the applicant, executor for the use and benefit of the applicant. 

It is also declared that the applicant is the executor according to the tenor of the Will and the words “share it equally amongst you” are to be read and construed as a gift of the whole of the estate to the deceased’s three children equally. 

I also order that the costs of the applicant, the first respondent, second respondent and the third respondent be paid from the estate on an indemnity basis.

Footnotes

[1][2015] QCA 206.

[2][2001] NSWCA 408.

[3](1938) 60 CLR 336. 

[4][2018] QSC 206 at [17].

Close

Editorial Notes

  • Published Case Name:

    Re GEW

  • Shortened Case Name:

    Re GEW

  • MNC:

    [2020] QSC 119

  • Court:

    QSC

  • Judge(s):

    Lyons SJA

  • Date:

    30 Mar 2020

  • White Star Case:

    Yes

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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