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  • Unreported Judgment

Re Turrini; ex parte Public Trustee of Queensland

 

[2007] QSC 319

 

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

DELIVERED ON:

20 September 2007

DELIVERED AT:

Cairns 

HEARING DATE:

17 August, 2007; 20 September 2007

JUDGE:

Jones J

ORDER:

1. The Request for an Order to Administer the will of Assunta Turrini dated 26 August 1988 should be granted subject to the formal requirements of the Registrar.

2. That the costs of all parties of and incidental to, this reference be assessed on an indemnity basis and paid from the residuary estate.

CATCHWORDS:

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – the making of a will – execution – Queensland – substantial compliance with formalities – attestation –

Succession Act 1981 s 9.

COUNSEL:

Mr M Glen for the applicant 

SOLICITORS:

The Official Solicitor for the Public Trustee of Queensland 

[1] Assunta Turrini died on 21 December 2003 leaving two wills.  The first in time was executed on 26 August 1988 and the second on 20 December 1997.  The appointed executor in each case is The Public Trustee of Queensland. 

[2] Because of concerns about the validity of the second will, the executor has sought an Order to Administer the earlier will.  Those concerns relate to the manner of the attestation of the second will and to the different terms of the dispositions which suggests that the testatrix may have lacked testamentary capacity at that time. 

[3] The matter comes before me on a referral by the Registrar pursuant to R 982 of the Uniform Civil Procedure Rules.  I construe that referral as seeking a direction as to whether, in the circumstances, the Order to Administer the earlier should be granted as requested. 

[4] The testatrix was born in Italy on 13 March 1915. She was thus 88 years of age at the time of her death and 73 years of age at the time she executed the earlier will.  There is no doubt about the validity of the earlier will.  It was drawn at the Office of The Public Trustee and witnessed by officers acting on behalf of The Public Trustee.  By its terms it provided for a devise of the testatrix’s dwelling house and contents to Angela Salerno, the long-time friend and carer of the testatrix.  The residuary estate passed to such of the testatrix’s three sisters who survived her for a period of 30 days.  In the event that none of the sisters so survived her the residuary estate would pass to Angela Salerno.

[5] Of the intended beneficiaries only the testatrix’s sister Maria predeceased her.  Maria died in the year 2001.

[6] The surviving residuary beneficiaries take the same interest under both wills and have expressly indicated support for the Order to Administer to be made in respect of the earlier will.  There is no doubt that the testatrix had testamentary capacity at the time of executing the first will and no doubt that the formalities of execution were complied with provided for in s 9 of the Succession Act 1981, as the Act was then configured. 

The later will

[7] The later will is written in the testatrix’s own handwriting which, it must be noted, was neat and firm.  She was then 82 years of age.  By its terms, the intended specific devise of her house was to “the English Monarchy”.  The residuary bequest in the event of her sisters not surviving her was in the following terms:-

“I devise and bequeath the residuary money to keep for to pay the workmen in the future cool war.”

[8] The disposition of her property so expressed suggests some bizarre thought process at work but there is no direct evidence of her testamentary capacity at that time.  According to the affidavit of Ms Barr the testatrix lived “an isolated life” and avoided “all medical treatment” though no detail is given for these conclusions.  Requests for medical information was directed to the hospital and various medical clinics in Mareeba.  They were the Mareeba Medical Clinic, Byrnes Street Medical Clinic, and Mulungu Medical Centre.

[9] Positive responses were received from the Mareeba Hospital and the Mareeba Medical Clinic.   From the Mareeba Hospital the records show that the testatrix was seen by medical practitioners there on 1 August 2000.  She was taken to the hospital by the Queensland Ambulance Service following an emergency 000 call to the police.  On examination, she was uncooperative.  The medical practitioners were unable to be certain about her responses, noting that she may have been confused (language problem and hysteria).  She was making comments such as “the sons of Noah put light in her feet and head”.  She was judged by the hospital staff to be incapable of giving consent but they were otherwise unable to determine her mental state and questioned whether she had a psychiatric illness or a cerebral illness.  It is clear enough that the testatrix lacked testamentary capacity at that time.  That however was some three years after the execution of the later will.  Also the record of the Coroner’s findings following the examination of the cause of the testatrix’s death notes that she “demonstrated some symptoms of dementia in recent times”.[1]

[10] She had in 1999 consulted Mr Thomas Braes of the firm of Braes and Apel to check the later will.  His advice to her is set out in a letter dated 20 April 1999[2].  Mr Braes was concerned about the validity of this will and accepted instructions to re-draft the will to replace The Public Trustee as trustee.  He noted that there was no clause revoking the earlier will and no attestation clause.  Such a lack is of little consequence as can be gauged by the provisions in the current s 10(9) of the Act. He queried the testatrix’s desire to devise her house to the “English Monarchy” and expressed the view that it was not possible to leave her residuary estate to the “workmen of the future cool war”.  It appears that the testatrix did not act upon this advice to have will redrafted. 

[11] What is lacking in the material, however, is any comment from Mr Braes as to her conduct from which her testamentary capacity as at that date might be gauged.  Mr Braes has informed the office of the Public Trustee that he does not have sufficient recollection to make an affidavit.[3]

[12] A further affidavit of Angela Solerno filed herein on 7 September 2007 has supplemented the evidence of her relationship with the testatrix and in particular has given more detail to the deteriorating state of her mental condition.  From 1995, Ms Salerno observed bizarre behaviour and comments which had a theme of the testatrix fighting the “sins of the world” and being in contact with the Pope, Mother Theresa and world leaders such as President Clinton and Prime Minister Berlusconi.  The testatrix left an envelope with Ms Solerno’s mother with the words written thereon which translate:-

“Please give this envelope to the God of the earth.  Please give this $1,000 to your god of the earth.  Thanks, Assunta Turrini.”

The envelope did not contain any money. 

[13] I accept the evidence of Ms Solerno and find that there were signs that the testatrix’s mental capacity was adversely affected by the year 1995.

Was there due execution of the later will?

[14] The relevant statutory provisions as at the date of the execution of the document was s 9 which is in the following terms:-

“A will shall not be valid unless it is in writing and executed in manner hereinafter mentioned and required (that is to say) it shall be signed at the foot or end thereof by the testator or by some other person in the testator’s presence and by the testator’s direction and such signature shall be made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time and such witnesses shall attest and shall subscribe the will in the presence of the testator but no form of attestation shall be necessary provided that –

(a) The court may admit to probate a testamentary instrument executed in substantial compliance with the formalities prescribed by this section if the court is satisfied that the instrument expresses the testamentary intention of the testator; and

(b) The court may admit extrinsic evidence including evidence of statements made at any time by the testator as to the manner of execution of a testamentary instrument.”

[15] The only evidence of attestation comes from Mr Paolo Ciaccia who stated that the will was already signed when he witnessed it and from Mrs Rae Ciaccia who could not remember if the will was already signed when she signed.  They were both present at the same time when they added their signatures.  In these circumstances, I feel I should follow the positive recollection of Mr Ciaccia and find that the testator did not, in fact, execute the will in the presence of those witnesses.  It seems, however, that each of them believe they were in fact subscribing a document which they understood was a will.  This after all was the task for which the testatrix asked them to attend her home.  It is not clear whether there was any specific acknowledgement of the document as her will on the part of the testatrix or whether the attesting witnesses simply presumed it to be so.

[16] On the material before me, I am willing to find that the will was signed by the testatrix in compliance with that part of s 9 but I am not satisfied that there has been proper compliance with the requirements of attestation as set out in that section.

[17] This is not a case where anyone seeks to argue substantial compliance pursuant to s 9 above.  Both the executor and those intending to benefit under the will contend that has been no substantial compliance.  The executor contends that by the appropriate public advertising of the request for the Order to Administer if there were any person entitled to claim under the descriptor “the English Monarchy”, then it would be open to that person to make application for the later will to be proved in solemn form.

[18] But even if there were a contester to this application seeking to establish substantial compliance, the argument would be unlikely to succeed for a number of reasons.  In Re Nicholls[4] Williams J considered the situation where there was only one attesting witness to a will in respect of which there was some doubt about the testator’s intention.  After considering a number of authorities he said:-

“One of the important considerations is whether or not the Court is satisfied that the instrument in question expresses the testamentary intention of the deceased.  If that is clearly established then special or exceptional circumstances surrounding the execution of the document may lead, in my view, to a conclusion that there has been substantial compliance despite the fact that there has only been one attesting witness.  Support for such a proposition, at least in broad terms, can be found in a number of the judgments referred to above.  It is not helpful to formulate hypothetical situations which may possibly give rise to such a conclusion.”[5]

His Honour referred particularly to White v The Public Trustee[6]; Re Chalmers[7]; Re Matthews[8]; In the Will of Eagles[9], each of which dealt with the question of whether in the circumstances there was “substantial compliance”.

[19] Particular reference should be made to the decision of Thomas J in Re Johnson[10] where the testator had not signed in the presence of attesting witnesses.  His said (at p 518):-

“There must of course be a limit on what can amount to substantial compliance.  The execution of a will is rightly regarded as an important occasion, and “protective, cautionary and evidentiary benefits” are recognised to attach to the retention of some procedure that formalises the occasion…It must be not be forgotten that the formalities have been re-enacted, and subject of course to the indulgence permitted by s 9(a).

I agree with Professor Langbein’s comment that “the substantial compliance doctrine is a rule neither of maximum nor minimum formalities, and it is surely not a rule of no formalities.  Clearly a question of degree is involved.”

[20] More particularly, Williams J in Re Nicholls looked at the question in a global way.  He said:-

“Having regard to the nature of the document in question, to the manner of death shortly after its execution, to evidence as to his state of mind leading up to the preparation of the document and at that time, to the age and circumstances of the person whose signature appears on the document as a witness, to the (probably ready) availability of other persons to act as attesting witnesses, to the fact that the first page is neither signed or witnessed, to the fact that there is no attestation clause, and to the conversation deposed to with the deceased by the sole witness, I am not in all the circumstances satisfied either that there has been substantial compliance with the requirements of s 9 of the Succession Act or that the document expresses the testamentary intention of the deceased.”[11]

[21] Similar considerations apply here.  The later will has a number of deficiencies in the sense that it does not expressly revoke former wills, it is does not have any attestation clause and the dispositions on their face are somewhat bizarre.  The testatrix did not respond to the sound advice given to her by her solicitor about the status of the will and the need for it to be replaced with one which was properly drafted.  Finally, there is the issue that I am not satisfied that the will has been properly attested.  The circumstances raise serious doubts about the testamentary capacity of the testatrix and whether therefore what is expressed in the will actually records a true testamentary intention.  The intended devisee of the testatrix’s house (if there by any such person) has no moral claim on the testatrix’s estate nor is there any likelihood that the devise would be of interest to any such possible beneficiary.  The alternate residuary beneficiary is plainly uncertain and suggests a flawed thought process on the part of the testatrix.  In all the circumstances it is appropriate that an order to administer should granted in respect of the earlier will.  

Orders

[22]1.The Request for an Order to Administer the will of Assunta Turrini dated 26 August 1988 should be granted subject to the formal requirements of the Registrar.

2. That the costs of all parties of and incidental to, this reference be assessed on an indemnity basis and paid from the residuary estate.

Footnotes

[1] Ex “TF11” to affidavit of Timothy Feely filed 16 August 2007

[2] Ex “TF12” to affidavit of Timothy Feely filed on 16 August 2007

[3] Ex “TDW2” to affidavit of Trevor Douglas Wellman sworn 19.09.07

[4] (1996) 1 QdR 179

[5] Ibid at p 81 line 30

[6] (1986) 17 Leg. Rep. SL 4

[7] Ecc 84/1993, White J (unreported)

[8] (1989) 1 QdR 300

[9] (1990) 2 QdR 501

[10] (1985) 2 QdR 516

[11] Ibid at pp 181-182

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Editorial Notes

  • Published Case Name:

    In the Will of Turrini, ex parte The Public Trustee of Queensland

  • Shortened Case Name:

    Re Turrini; ex parte Public Trustee of Queensland

  • MNC:

    [2007] QSC 319

  • Court:

    QSC

  • Judge(s):

    Jones J

  • Date:

    20 Sep 2007

Litigation History

No Litigation History

Appeal Status

No Status