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Queensland Judgments
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Re Picking

 

[2020] QSC 278

SUPREME COURT OF QUEENSLAND

CITATION:

Re Picking [2020] QSC 278

PARTIES:

In the will of VALERIE JOAN McKEON PICKING, deceased

FILE NO:

BS No 8415 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application for probate

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

11 September 2020

DELIVERED AT:

Brisbane

HEARING DATE:

Application determined without oral hearing

JUDGE:

Davis J

ORDERS:

  1. 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 Act 1981.
  2. 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.
  3. Costs of the application be borne by the estate.

CATCHWORDS:

SUCCESSION – MAKING OF A WILL –  TESTAMENTARY INSTRUMENTS – ALTERATIONS, ADDITIONS AND INTERLINEATIONS – UNEXECUTED ALTERATIONS – where the applicant, who is one of the executors, seeks a declaration that handwritten amendments to a copy of the will is a valid codicil to the last will of the deceased – where the copy of the will was held by the deceased – where the applicant was told of the location of the copy – whether the deceased intended the amendments to constitute an alteration to her will – whether the court should exercise its discretion under s 18 of the Succession Act 1981 to dispense with the execution requirements – whether the amendments are a valid codicil – whether probate should be granted

Succession Act 1981, s 10, s 16, s 18

Hatsatouris v Hatsatouris [2001] NSWCA 408, followed
Lindsay v McGrath [2016] 2 Qd R 160, followed

SOLICITORS:

de Groots Wills & Estate Lawyers for the applicant

  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.

Background

  1. [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.
  2. [3]
    Mrs Picking had siblings, Vivienne Merle Ricardo (Merle), Felix John McKeon (Felix), Brian James McKeon (Brian) and Margaret Jean de Lanty.
  3. [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.
  4. [5]
    Rowena Docherty (Rowena) is described as Mrs Picking’s step-granddaughter.
  5. [6]
    Mrs Picking made a will dated 23 October 2001. 
  6. [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.
  7. [8]
    Mrs Picking died on 11 March 2020.
  8. [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.
  9. [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.

The will in its original form

  1. [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.
  2. [12]
    By the will Mrs Picking:
  1. (a)
    revoked earlier wills;[2]
  2. (b)
    appointed Wendy and Margot as her executors and trustees;[3]
  3. (c)
    by clause 6(a), left her wooden dining room table and six chairs to Rowena;
  4. (d)
    by clause 6(b), left her grandmother’s sewing table to the Maryborough Wide Bay and Burnett Historical Society (the Historical Society);
  5. (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;
  6. (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
  7. (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.

The notations on the will

  1. [13]
    Clause 6(a) originally read:

“(a) As to my wooden dining room table and six chairs for my step-granddaughter ROWENA DOCHERTY.”

  1. [14]
    On the copy of the will, a waved line has been drawn through both lines of clause 6(a).
  2. [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).
  3. [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”.
  4. [17]
    Clause 6(b) was originally:

“(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.”

  1. [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”.
  2. [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)”.
  3. [20]
    Clause 6(d) appears in the will as:

“(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.”

  1. [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”.

Action of Wendy’s solicitors after Mrs Picking’s death

  1. [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.
  2. [23]
    That contact resulted in Rowena signing a document headed “Agreement and Disclaimer”, the relevant passage in which is:

“I am in agreement that the deceased intended to remove the testamentary disposition to me contained under clause 6(a) of her will.

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]

  1. [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:
  1. (a)
    Email of 18 July 2020:

“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.”

  1. (b)
    Email of 21 July 2020:

“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]

  1. [25]
    Correspondence was also sent to Michael and John.  Both ultimately signed documents headed “Agreement and Disclaimer”.
  1. (a)
    The document signed by Michael included:

“I confirm that I am one in[6] the same as the Michael referred to in the handwritten comment of the deceased.

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.

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]

  1. (b)
    The document signed by John included:

“I confirm that I am one in[8] the same as the John referred to in the handwritten comment of the deceased.

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.

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]

Wendy’s position

  1. [26]
    There are no facts in issue and no party seeks an oral hearing.  I shall deal with the application without oral hearing.[10]
  2. [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.
  3. [28]
    As to the notation relevant to clause 6(a) of the will, Wendy submits:
    1. (a)
      the waved line drawn through the clause, together with the words “forget this” manifest an intention to revoke the bequest; and
    2. (b)
      the addition of the name “Peter” was effectively a signature of Mrs Picking which indicated that the amendment was intended to have significance.
  4. [29]
    As to the notations relevant to clause 6(b) of the will, Wendy submits:
    1. (a)
      the waved line through the clause manifests an intention to revoke the bequest of the sewing table; and
    2. (b)
      no submission is made in relation to the apparent inclusion of the pink and cream jug and basin.
  5. [30]
    As to the notations relevant to clause 6(d) of the will, Wendy submits:
    1. (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
    2. (b)
      the notation is simply a thought.

Findings

  1. [31]
    I find that all the handwritten notations on the copy will were made by Mrs Picking.
  2. [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:
    1. (a)
      She made the will through her solicitors.
    2. (b)
      There is no suggestion of any later will.
    3. (c)
      The notations made were on a copy of the will which, as I have said, was prepared by her solicitors.
    4. (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.
    5. (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.
  3. [33]
    As to the notations relevant to clause 6(a) of the will I find:
    1. (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.
    2. (b)
      Mrs Picking intended the will to operate with that amendment to clause 6(a).
    3. (c)
      Rowena accepts this.
    4. (d)
      Rowena has disclaimed any interest in the table and chairs.
  4. [34]
    As to the notations relevant to clause 6(b) of the will:
    1. (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. 

However:

  1. (a)
    that intention was formed because she intended and had made an inter vivos gift of those things to the Historical Society; and
  1. (b)
    she did make an inter vivos gift of those things to the Historical Society.
  1. [35]
    As to the notations relevant to clause 6(d) of the will I find that:
    1. (a)
      Mrs Picking did not manifest a testamentary intention to alter the operation of clause 6(d).
    2. (b)
      John has disclaimed any interest in the property the subject of clause 6(d).
    3. (c)
      Michael has disclaimed any interest in the property the subject of clause 6(d) of the will.
  2. [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:
  1. (a)
    There is no property identified in the notation.
  2. (b)
    Mrs Picking was obviously aware of how to make a proper gift; she had done it in her will.

Legal principles

  1. [37]
    Section 10 of the Succession Act 1981 specifies the formal requirements for a valid will.  It provides:

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.
  1. (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.
  1. (5)
    However, none of the witnesses need to know that the document attested and signed is a will.
  1. (6)
    The signatures need not be at the foot of the will.
  1. (7)
    The signature of the testator must be made with the intention of executing the will.
  1. (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.
  1. (9)
    A will need not have an attestation clause.
  1. (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.
  1. (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.
  1. (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.
  1. (13)
    This section does not apply to a will made under an order under section 21.”
  1. [38]
    There is no suggestion that the will is not validly executed.
  2. [39]
    Section 16 prescribes the necessary requirements for a valid variation of a will.  It provides:

16 How a will may be altered

  1. (1)
    An alteration to a will after it has been executed is not effective unless the alteration—
  1. (a)
    is executed in the way a will is required to be executed under this part; or
  1. (b)
    is authorised by an order under section 19 and is executed under section 20; or
  1. (c)
    is authorised by an order under section 21 and is executed under section 26.[11]
  1. (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.
  1. (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—
  1. (a)
    in the margin or on some other part of the will beside, near or otherwise relating to the alteration; or
  1. (b)
    as authentication of a memorandum referring to the alteration and written on the will.”
  1. [40]
    The notations on the copy will do not comply with s 10 and therefore do not comply with s 16.
  2. [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:

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 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.”
  1. [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:

[57] In Hatsatouris v Hatsatouris[14] Powell JA observed, in relation to the analogous provision in New South Wales:

‘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:

  1. (a)
    was there a document,
  1. (b)
    did that document purport to embody the testamentary intentions of the relevant Deceased?
  1. (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?”

This approach has been applied in Queensland.[15]

[58] The second element requires a consideration of the expression ‘testamentary intentions’. In Re Masters (deceased)[16] Mahoney JA observed:

‘… [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.’

[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)

Discussion and determination

  1. [43]
    In many respects, the application to give probate on the alleged codicil serves no practical purpose.  That is because:
    1. (a)
      Rowena does not contest the application and has disclaimed any interest in the wooden table and chairs.[19]
    2. (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]
    3. (c)
      Both John and Michael have disclaimed any interest in the residue estate.[21]
  2. [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.
  3. [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.
  4. [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.
  5. [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.
  6. [48]
    I make the following orders:
  1. 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 Act 1981.
  2. 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.
  3. Costs of the application be borne by the estate.

Footnotes

[1]Affidavit of Wendy Elizabeth Nielsen, affirmed 29 July 2020, CFI 3, paragraph 6.

[2]Clause 1.

[3]Clause 4.

[4]Affidavit of Wendy Elizabeth Nielsen, affirmed 29 July 2020, exhibit WN-2.

[5]Affidavit of Wendy Elizabeth Nielsen, affirmed 29 July 2020, exhibit WN-9.  Both emails reproduced faithfully with any typographical errors.

[6]Should read “and”.

[7]Affidavit of Wendy Elizabeth Nielsen, affirmed 29 July 2020, exhibit WN-10.

[8]Should read “and”.

[9]Affidavit of Wendy Elizabeth Nielsen, affirmed 29 July 2020, exhibit WN-11.

[10]Pursuant to the Uniform Civil Procedure Rules 1999 Chapter 13, Part 6.

[11]Sections 19, 20, 21 and 26 have no relevance here.

[12][2016] 2 Qd R 160.

[13][2001] NSWCA 408.

[14][2001] NSWCA 408, [56].

[15]Re Garris [2008] 2 Qd R 59, 8; Re Edmonson [2013] QSC 54.

[16](1994) 33 NSWLR 446, 455.

[17]Hill v Plummer per Kirby P (as his Honour then was), 452.

[18]Oreski v Ikak [2008] WASCA 220, [54].

[19]Clause 6(a) of the will.

[20]Clause 6(b).

[21]Clause 6(d).

Close

Editorial Notes

  • Published Case Name:

    Re Picking

  • Shortened Case Name:

    Re Picking

  • MNC:

    [2020] QSC 278

  • Court:

    QSC

  • Judge(s):

    Davis J

  • Date:

    11 Sep 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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