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  • Unreported Judgment

Re Julia Lesley Cleland (deceased)

 

[2009] QSC 189

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

In the Will and one Codicil of Julia Lesley Cleland deceased [2009] QSC 189

PARTIES:

IN THE WILL AND ONE CODICIL OF JULIA LESLEY CLELAND DECEASED

FILE NO/S:

BS 2429 of 2009

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

10 July 2009

DELIVERED AT:

Brisbane

HEARING DATE:

8 July 2009

JUDGE:

White J

ORDER:

1.The document marked Exhibit “B” to the affidavit of Robert David McKinnon Cleland filed 5 March 2009 be admitted as a codicil to the will of the deceased dated 21 January 2003;

2.The said codicil be read and construed in the terms set out in Exhibit “D” to the affidavit of Robert David McKinnon Cleland filed 5 March 2009;

3.The will of the deceased dated 21 January 2003 and the said codicil be admitted to probate in solemn form;

4.Costs of and incidental to this application be paid out of the estate of the deceased on an indemnity basis.

CATCHWORDS:

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – PROBATE AND LETTERS OF ADMINISTRATION – JURISDICTION AND DISCRETION OF THE COURT – QUEENSLAND – where the applicant seeks to have a handwritten document by the deceased admitted to probate as a codicil to the deceased’s will – where the document does not comply with provisions of s 10 Succession Act 1981 (Qld) – whether the document was intended by the deceased to effect an alteration of her will – whether the court should dispense with execution requirements under s 18 Succession Act 1981 (Qld)

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

The Estate of Masters (deceased); Hill v Plummer (1994) 33 NSWLR 446, applied

COUNSEL:

Mr S B Whitten for the applicant

SOLICITORS:

BCI Lawyers for the applicant.

  1. Julia Lesley Cleland (“the deceased”) died on 11 December 2008 aged 77 years leaving an estate in Queensland.  She is survived by her husband, David MacKinnon Cleland, and their two daughters, Susan Elizabeth Farrow and Kathryn Margaret Cullen aged 52 and 49 years, respectively, and five grandchildren.
  1. The deceased executed a will on 21 January 2003. She appointed Mr Cleland her executor. The will is a lengthy and detailed document prepared by the deceased’s then solicitor. She hand wrote a document on or about 10 November 2008 headed “My Will” which Mr Cleland seeks to have admitted to probate as a codicil to the will of 21 January 2003 notwithstanding its non-compliance with the provisions of s 10 of the Succession Act 1981 (Qld).  It is non-compliant in that it is not signed nor does it have attesting witnesses.  It is not dated.  There is no opposition to that course by any person interested under the will but it remains to be seen if the purported codicil was intended by the deceased to effect an alteration of her will so as to fall within the provisions of s 18 of the Succession Act.
  1. Section 18 provides:

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

(1)This section applies to a document, or a part of a document, that –

(a)purports to state the testamentary intentions of a deceased person; and

(b)has not been executed under this part.

(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.

(3)In making a decision under subsection (2), the court may, in addition to the document or part, have regard to –

(a)any evidence relating to the way in which the document or part was executed; and

(b)any evidence of the person’s testamentary intentions, including evidence of statements made by the person.

(4)Subsection (3) does not limit the matters a court may have regard to in making a decision under subsection (2).

(5)This section applies to a document, or a part of a document, whether the document came into existence within or outside the State.”

The will of 21 January 2003 is too lengthy to set out in these reasons but its relevant clauses may be stated briefly as those clauses assist in evaluating the status of the purported codicil document.  The will is expressed to be in three main parts.  Part A sets out how the estate is to be divided, Part B sets out instructions in relation to discretionary and other powers given to the executor and Part C concerns general administrative provisions.  In default of Mr Cleland taking up his executorial duties the deceased appointed her two daughters. 

  1. By clause 5 in Part A the deceased gave:
  • her jewellery etc to be divided equally between her daughters;
  • $10,000 to each daughter and $5,000 to each of five named grandchildren;
  • Investment Linked Plans with AMP to Kathryn on trust for each of her children until 21;
  • shares in named companies to be held on trust in accordance with Part C with the daughters as primary beneficiaries of half each of the shares;
  • a life interest in her property at Bogangar in New South Wales to her husband with all costs associated with the property being met out of the estate.
  1. By clause 7.1 the balance of the estate is to be held on trust in accordance with Part C with her husband as primary beneficiary.
  1. Alternative provisions, which are no longer relevant as Mr Cleland survived his wife, about the disposal of the estate are set out in clause 9 and following. Suffice to say that the daughters are the primary beneficiaries.
  1. Part B consists of instructions to the executor and discretionary powers. Clause 14 is headed “Overriding Intention” and provides:

“14.1It is my intention that my executors administer my estate in such a manner so as to give priority to the following:

(a)first, the division of my estate and other assets between beneficiaries as outlined in Part A of this Will

(b)secondly, having regard to taxation and other matters, to consider the most cost effective manner of dealing with the assets forming part of my estate.”

In clause 14.3 she directed:

“14.3It is my strong wish that prior to exercising their powers pursuant to this Part, my executors obtain appropriate taxation and other advice, having regard to the circumstances of my primary beneficiaries…”

  1. Clause 15 concerns the executor’s discretionary powers covering “Parallel Testamentary Trust”, “More Restricted Testamentary Trusts”, “Split Fixed Testamentary Trusts”, “Reserved Non-Fixed Testamentary Trusts” and “Income Reserved Non-Fixed Testamentary Trusts”. Notwithstanding those detailed directions, by clause 16 the deceased particularly directed that the executor may distribute the assets directly to a beneficiary or to any other trust established other than pursuant to the will.
  1. By clause 17 the deceased forgave loans owing to her by her children but leaving a degree of latitude to the executor.
  1. Part C concerns administrative provisions. Of note is clause 19.5 which requires the consents of the primary beneficiaries or all of the specified beneficiaries before the trustee may do a number of things including amending the terms of the beneficiary testamentary trust. There follows numerous articulations of what the trustee may do giving wide discretionary powers but always involving the beneficiaries in significant decision making.
  1. By clause 24 the deceased expressed the following:

“It is my wish that in making substantial investments my executors obtain and consider the advice of an advisor who is experienced and knowledgeable in financial and investment planning and, where appropriate, is a licenced trustee company or who is also a member of the: [there follow named bodies]”

  1. The deceased was afflicted by a chronic obstructive airways disease. On 30 October 2008 she experienced an episode which required her hospitalisation and she remained in hospital until 10 November 2008. She returned home on that day. She knew that her solicitor had agreed to come to the hospital to see her and take instructions regarding changes to be made to her will. Those changes she had discussed in some detail with her husband and also with her two daughters. The document which Mr Cleland wishes to have admitted to probate as a codicil is thought by him to have been written on 10 November 2008. The writing is quite shaky but Mr Cleland and his daughters depose that the document is in her hand writing. They have endeavoured to interpret the document and have put their interpretation before the court. It is as follows:

My Will

All in joint names to Robert

Caba house to KMC in clear

Birkdale House cleared of mortgage

S’s share protected against claims as at present

Should K’s be too?

One unit to each of S & K? in good positions re city and Uni so easy to rent but old.  I bought one for $75000 new in 1987, now approx 325000 at same rent.

Portfolio divided into 3?  Maybe less to R but ensure equal part to S & K.

$5000 to each grandchild – or more?

K needs appropriate cash flow & someone to manage portfolio.”

  1. On 11 November the deceased was returned to hospital because her condition had deteriorated. On 26 November the deceased signed an authorisation for her previous solicitors to transfer her will file to Mr Kevin O’Hanlon. He had had a conference in August 2008 with Mr and Mrs Cleland about their wills. The deceased returned home from hospital on 1 December 2009 but that evening her condition deteriorated further and she was taken to hospital again. Her mental alertness and focus, according to Mr Cleland, slipped thereafter.
  1. Prior to preparing the purported codicil document the deceased discussed the disposal of her inherited estate with her husband and daughters. From about 2005 she had expressed the desire that the daughters receive their share directly rather than through their father. Mr Cleland deposes that his late wife was astute about her investments and assets “and had a good business mind” which he did not profess to have himself. He has deposed that his late wife’s intention to split her estate three ways was one with which he was quite comfortable. Furthermore, she was concerned to balance the gifts to their daughters whose financial circumstances were different, Kathryn being a divorced mother of three children with little maintenance support and Susan in a stable marriage who worked with her husband in a successful business. The deceased had supported Kathryn, who also has health problems, with meeting educational and medical expenses and had given cash gifts to Susan to balance financial matters between them.
  1. When the deceased first visited Mr O’Hanlon in August 2008 she conveyed the basic changes that she wanted to her will but said she wished to go through it in detail before consulting with him again. At that time, although the deceased’s condition was understood ultimately to be terminal it was not until towards the end of the year when her physical condition deteriorated that the reality became patent.
  1. The three beneficiaries are in agreement that the purported codicil document reflects the wishes and intentions of the deceased about the disposition of her estate which she had expressed to them on a number of occasions and they desire to carry out her intentions. Mr Cleland acknowledges that he will take significantly less if that document is admitted to probate with the will.
  1. Some expressions in the will require elucidation and the beneficiaries have offered their interpretation.
  • “All in joint names to Robert” indicates that the deceased was aware that all property in the joint names of herself and her husband would come to him by operation of law.
  • “Cabba house to KMC in clear” refers to the property at 127 Cabarita Road, Bogangar, New South Wales and conveys the deceased’s wish that that house in which Kathryn presently resides is to be bequeathed to her clear of all encumbrances.
  • “Birkdale House cleared of mortgage” refers to the house property of which Susan and her husband are the registered proprietors.  The “mortgage” over the house relates to a credit facility of which the deceased was well aware.  It is clear that the deceased intended that that debt secured against the property should be cleared from funds in the deceased’s estate.
  • “S’s share protected against claims as at present”.  In the alternative provisions in the will Susan’s share was subject to a trust. 
  • “Should K’s be too?”  This would simply give effect to the protection for Kathryn of her fund but the question mark might be an acknowledgment that Kathryn was divorced.
  • “One unit to each of S & K?”  The deceased owned two units at the date of her death and wished one each to be transferred to her daughters.
  • “Portfolio to be divided into 3?”  In the original will the portfolio was largely gifted to Mr Cleland.  The change is reflective of the deceased’s intention expressed to her three beneficiaries that the daughters inherit directly.  The question mark relates to how this might be effected with a single portfolio.
  • “$5,000 to each grandchild – or more?”  The beneficiaries accept that the deceased wished to increase the monies she had bequeathed to each of her grandchildren in her will.  Mr Cleland discussed this with his late wife recalling that she had said that the grandchildren should get $10,000 each.
  • “K needs appropriate cash flow & someone to manage portfolio”.  The deceased was concerned about Kathryn because of her health problems which reduced her capacity to work other than on a part-time basis.  She is in receipt of a disability pension.  Furthermore, her mother was aware that she needed someone to assist her in managing her portfolio because she had no business experience.
  1. Mr Cleland deposes that the use of question marks in the document indicated to him in the context of his late wife having said that she wished to go through the detail of the changes to her will and then discuss them with a solicitor, that she simply wanted to discuss the legal aspects of the changes with the solicitor. It did not suggest any indecision on her part. She was a decisive person and it reflected her expressed intentions.
  1. The authorities make plain that the legislature by effecting a fundamental change to the formal requirements for the validity of a will in s 18 intended the court to give a beneficial construction to that provision.[1]  When regard is had to the heading “My Will” to the document, the dispositive nature of the statements written in it; that it was written when the deceased’s health had become seriously compromised; that it reflected her intentions expressed to her family in the preceding months; that she had arranged for a solicitor to be involved in the amendment to her will; and that there is no opposition to admitting the document to probate from the beneficiary most affected; it may safely be concluded that the purported codicil document embodies the testamentary intentions of the deceased.  All the surrounding conduct of the deceased supports the inference that it was to operate as a modification to her will. 
  1. The orders are:
  1. The document marked Exhibit “B” to the affidavit of Robert David McKinnon Cleland filed 5 March 2009 be admitted as a codicil to the will of the deceased dated 21 January 2003;
  1. The said codicil be read and construed in the terms set out in Exhibit “D” to the affidavit of Robert David McKinnon Cleland filed 5 March 2003;
  1. The will of the deceased dated 21 January 2003 and the said codicil be admitted to probate in solemn form;
  1. Costs of and incidental to this application be paid out of the estate of the deceased on an indemnity basis.

Footnotes

[1] In The Estate of Masters (deceased); Hill v Plummer (1994) 33 NSWLR 446 per Mahoney JA at  462.

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Editorial Notes

  • Published Case Name:

    In the Will and one Codicil of Julia Lesley Cleland deceased

  • Shortened Case Name:

    Re Julia Lesley Cleland (deceased)

  • MNC:

    [2009] QSC 189

  • Court:

    QSC

  • Judge(s):

    White J

  • Date:

    10 Jul 2009

Litigation History

No Litigation History

Appeal Status

No Status