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  •   Notable Unreported Decision

Mahlo v Hehir

 

[2011] QSC 243

 

  

SUPREME COURT OF QUEENSLAND

  

PARTIES:

FILE NO/S:

Trial Division

PROCEEDING:

Claim

ORIGINATING COURT:

DELIVERED ON:

19 August 2011

DELIVERED AT:

Brisbane 

HEARING DATE:

8-10 August 2011

JUDGE:

McMurdo J

ORDER:

The claim be dismissed.

CATCHWORDS:

SUCCESSIONWILLS, PROBATE AND ADMINISTRATIONTHE MAKING OF A WILLEXECUTIONINFORMAL DOCUMENT INTENDED TO BE WILLOTHER STATES OR TERRITORIES – where the deceased typed on her home computer a document in the form of a will two weeks prior to her death – where the plaintiff seeks to prove that the electronic document was the deceased’s last will – whether the deceased intended the electronic document to form her will

Succession Act 1981 (Qld), s 18

Cahill v Rhodes [2002] NSWSC 561, cited

Hatsatouris & Ors v Hatsatouris [2001] NSWCA 408, cited

Mitchell v Mitchell [2010] WASC 174, considered

Oreski v Ikac [2008] WASCA 220, cited

Prucha v Standing [2011] VSC 90, considered

Re Trethewey [2002] VSC 83, considered

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

COUNSEL:

RM Treston for the plaintiff

NJ Nevison for the first defendant

The second and third defendants appeared on their own behalf

SOLICITORS:

Thynne & Macartney for the plaintiff

Greenhalgh Pickard Solicitors for the first defendant

The second and third defendants appeared on their own behalf

[1] Dr Karen Mahlo died on 28 May 2008.  About two weeks earlier, she had typed on her home computer a document in the form of a will.  It provided for the appointment of her brother, Brett Mahlo, as the executor and for gifts of $300,000 to her parents and the residue to her son and daughter. 

[2] Brett Mahlo seeks to prove this document as her last will.  His application, which is made under s 18 of the Succession Act 1981 (Qld), is supported by the deceased’s son and daughter who are the second and third defendants.  It is opposed by Mr Hehir, who was the executor and a beneficiary under a will made by Dr Mahlo in February 2008 when she and Mr Hehir were in a de facto relationship. 

[3] Section 18 provides, in part, as follows:

“(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).

…”

The term “document” within s 18 is defined by s 36 of the Acts Interpretation Act 1954 (Qld).[1]  It includes not only a paper document but also any document in electronic form. 

[4] The document the subject of this claim is in electronic form.  It is a Microsoft Word document entitled “This is the last will and testament of Karen Lee Mahlo.docx”, which was created on 8 May 2008 and subsequently modified on 15 May 2008.  I will call it ‘the electronic document’.

[5] On Dr Mahlo’s computer there is no record of the electronic document having been printed.  According to the joint report of the computer experts, this does not mean it was not printed.[2]  The absence of a record of printing, they say, neither proves nor disproves that the electronic document was printed at any time prior to Dr Mahlo’s death.  As I will discuss, there is evidence which indicates that it was printed and that the printed document was signed by her.  But no paper version has been produced and it is the electronic document which is the subject of this claim. 

The electronic document:  its terms

[6] It consisted of two pages, the first page being as follows:

This is The Last Will and Testament of me Karen Lee Mahlo of 23A William Street, Moffat Beach in the state of Queensland.

1.I REVOKE all prior testamentary dispositions.

2.I APPOINT my brother Brett John Mahlo of Orange NSW (herein called "my Trustee” and which expression shall mean and include the Trustee or Trustees of my estate for the time being whether original or substituted) to be Executor and Trustee of this my will.  If my trustee shall be unable to act or unable to continue to act or predecease me before my estate is distributed or for any reason fail or cease to act as my Trustee, I appoint my son Benjamin Yuri Sasonow to be the Executor and Trustee of this my last will and testament.

3.My Trustee hold my estate on Trust:

a.All monies arising from my estate to pay all my just debts, funeral and testamentary, expenses in respect of my estate both actual and notional or occasioned by my death for the administration of my estate so as to exonerate all persons from payment thereof or contribution thereto.

b.To GIVE the sum of $300,000 to my parents Beverly Mahlo and John Mahlo.  If they do not survive me then that money is to be retained in my residuary estate.

c.To GIVE the balance of all my real and personal property (herein called "my residuary estate") absolutely and equally, to my 2 children Benjamin Yuri Sasonow and Anastasia Jane Sasonow.

d.I would hope that anything in my possession such as jewelry, household items, art works etc will be given to those who are my family and friends as gifts for their kindness to me but only if they to love these items as I do.  This request is entirely to be presided over by my heirs, Benjamin an Anastasia Sasonow.

4.I have made no provision for my husband, Robert Wagoner nor his child NOT mothered by me as this was agreed within our marriage and subsequent separation within a few months.  He did stay in my home in separate quarters for some months as he had no income and no other accommodation.  There was never any expectation that either he or his daughter would be provided for under my estate.  Indeed our marriage was one of convenience for him so that he may stay in Australia to be close to his child.  Our marriage was over before it started.

5.I DIRECT that my body be cremated and my ashes be scattered at Moffat

 

 

Testator: …………………………..Witness: …………………………..1

Witness: …………………………..[3]

The second page was as follows:

Beach.

IN WITNESS WHEREOF I have hereunto set out my hand this day the 16th of May Two Thousand and Eight.

Signed:__________________________

         Karen Lee Mahlo

SIGNED by the Testator as and for her last Will and Testament in the joint presence of herself and us who at his request and in such joint presence have hereunto subscribed our names as witnesses.

Witness: __________________Witness: ___________________

Full name: _________________Full name: __________________

Occupation: ________________Occupation: _________________

Address: __________________Address: ___________________

____________________________________________________

 

Testator: …………………………..Witness: …………………………..2

Witness: …………………………..[4]

[7] In terms of s 18(1), this was a document which, on its face, purported to state Dr Mahlo’s testamentary intentions.  But there is an issue as to whether the electronic document was made by Dr Mahlo or instead by her daughter and without reference to her.  Subject to that issue, the question for determination is whether, in terms of s 18(2), Dr Mahlo intended the electronic document to form her will. 

Before May 2008

[8] Dr Mahlo was born in 1955.  She had three marriages before her de facto relationship with Mr Hehir.  Her two children were from one of those marriages. 

[9] Dr Mahlo moved from Orange in New South Wales to Queensland at the beginning of 2005.  She had been the Director of Clinical Services at the Orange Base Hospital before she took up a position at the Nambour Hospital

[10] Mr Hehir has a financial planning business, trading as Financial Advisers Australia (‘FAA’) on the Sunshine Coast.  She met him in about March 2006 when she became a client of that business.  Their de facto relationship commenced in about September 2006 and they lived together from November in that year in the house owned by Dr Mahlo. 

[11] Dr Mahlo made a will on 7 September 2006.[5]  It was prepared by Greenhalgh Pickard, solicitors, to whom she was referred by Mr Hehir.  This was when their relationship was professional and there was no provision for him in this will.  It appointed her other brother, Wade Mahlo, as executor.  It gave $150,000 to her parents, Beverly and John Mahlo, and the residue to her children as long as they should attain the age of 30 years.  Until then the sum of $20,000 per annum (indexed for inflation) was to be given to each child.  There was a similar clause as to why she was making no provision for Mr Wagoner, as appears in the electronic document.  There was the same direction for her cremation and the scattering of her ashes at Moffat Beach.  The will was duly signed and attested. 

[12] Dr Mahlo made a further will on 14 February 2008.[6]  This was not prepared by solicitors.  Mr Hehir says that he had some part in its drafting, but only by providing what he described as a “template” which was in the form of a will made by certain other clients of his business. 

[13] This second will appointed Mr Hehir as executor and provided that he should inherit her house together with “…all associated chattels” and her “…personal belongings … to distribute as he sees fit …”.  The sum of $150,000 was to be left to Dr Mahlo’s parents.  The residue was left to her children upon each attaining the age of 35 years.  Again this will was signed and attested.

[14] Mr Hehir neither admitted nor denied that he had drafted the clause under which the house and other items would be left to him.  That was cl 3b which was as follows:

“3.My Trustee hold my estate on Trust:

a.

b.To GIVE to John Michael Hehir the residence at 23A William Street, Moffat Beach and all associated chattels.  I give my personal belongings to John Michael Hehir to distribute as he sees fit to do so.  If he does not survive me then these assets are to be retained in my residuary estate.”[7]

This clause had no equivalent in the so-called template.  It is more likely that it was drafted by Mr Hehir than by Dr Mahlo.  He had more experience with wills.  Almost inevitably the couple had discussed the fact that this will would leave him the house in which they lived.  In those circumstances, it is more likely that he undertook the drafting rather than leaving it to her to do so.  Indeed, probably he drafted this will in its entirety.

[15] After its execution, this February will was kept by Mr Hehir at FAA’s office.  It was delivered to Greenhalgh Pickard, who act here for Mr Hehir, on the date of Dr Mahlo’s death. 

[16] For reasons which do not clearly appear from the evidence here, Dr Mahlo was suspended on full pay from her duties at the Nambour Hospital.  During this period of suspension, she became depressed, or more depressed.  But she continued to be paid and it would appear that she was not under any particular financial pressure.

[17] According to Mr Hehir, in March 2008 he and Dr Mahlo discussed what he said was his proposal to rent an apartment because he had decided that he wanted “some space”.[8]  On about 2 April 2008 he leased an apartment at Cotton Tree.  But he claims that for most of the time, he continued to sleep at Dr Mahlo’s house.  He said that the electricity was not connected at the Cotton Tree apartment and the only furnishing there was an inflatable bed.  This beggars belief.  Even upon his evidence, he must have spent many nights at Cotton Tree.  He did not explain why, having gone to the trouble and expense of leasing this apartment, he did not make it habitable.  There is no evidence, apart from his own, that he spent any nights at Dr Mahlo’s house after he took this apartment. 

[18] On one night on which he admits he was at Cotton Tree, which was 11 April 2008, it appears that Dr Mahlo attempted suicide.  She was taken to the Caloundra Hospital and then to the Royal Brisbane Hospital where she stayed for a few days.  She was released to a psychiatric clinic in Brisbane from which she was discharged on about 18 April 2008.

May 2008

[19] At the beginning of May 2008, Dr Mahlo and her daughter went to Orange for a few days, where they saw Dr Mahlo’s parents, her brother Brett and his wife Ceinwen Mahlo as well as some of Dr Mahlo’s friends.  Her mother’s evidence, which I accept, was that she was then told by Dr Mahlo that the de facto relationship was over.[9] 

[20] After Dr Mahlo and her daughter returned to the Sunshine Coast, her parents were so concerned about her that they decided that her father should go to stay with her.  He flew to the Sunshine Coast on 10 May 2008 and stayed for nine days. 

[21] On 7 May, Greenhalgh Pickard emailed to Dr Mahlo a copy of “your will” which was that made in 2006.

[22] Whether or not Mr Hehir spent any time at Dr Mahlo’s house from April onwards, it is clear that they were communicating upon friendly terms.  Dr Mahlo was discharged from Royal Brisbane Hospital into his care.  And clearly also, they had discussed her proposal to make a new will.  On 8 May 2008 he emailed to her copies of her February 2008 will and an enduring power of attorney, which she had executed at the same time and which had appointed him as her attorney.  Another attachment to the email was an Excel spreadsheet which contained some details of her property and projections of the worth of her estate if presently realised and invested until certain years in the future.  His email was, in part, as follows:

“Hi Karen,

I have recreated your Will & EPoA as is currently signed in a word dot format for you to amend as you wish as a word document.  I have also created an excel sheet for you to peruse for the inheritance value both now and in the future.  I have created this Excel sheet in such a way that you can change/play with the variables to see the differing results based on future expected % returns and growth rates etc.  I have guessed a lot of the values and have not done the investigation to provide accurate figures at this stage, but believe that this will be close enough for the exercise and you can change them wherever you like.  Figures like the Q Super and all Prop vals incl debt are an educated guess.

When changing your will, don’t consider items like the Mini as it currently is worth less that the amount owing.  This type of item, cars generally, are ignored within a will.  Please send me a copy of your Will & EPoA for me to peruse to ensure that it still will meet the legal criteria and the document will reflect your wishes will be met before resigning it.  We see many wills in here that really do not reflect clients wishes and when explained, we change them in a way that their wishes will be adhered to.  …”[10]

The balance of the email was not concerned with the will or the power of attorney.  It was to the effect that Mr Hehir was in love with Dr Mahlo and wanted things to be as they had been.  He wrote: 

“Just weeks ago you were so deeply in love with me and to believe that this can all change so quickly is so hard to comprehend for me.  As Ben [her son] suggested yesterday, it is like you are shutting out those that love you so as not to hurt them when you go.  …”[11]

That is further evidence that the de facto relationship had ended. 

[23] The Excel spreadsheet set out her assets as her house valued at $800,000 subject to a mortgage of $120,000, investment real estate worth $450,000 subject to mortgages of $400,000, a life insurance policy worth $1,300,000 and superannuation worth $450,000.  Mr Hehir included a calculation which estimated the future value of that estate (apart from the house or its proceeds) being invested over 15 years. 

[24] On the same day, 8 May 2008, Mr Hehir sent another email, attaching another Excel spreadsheet and explaining that the previous version had overlooked the testamentary gift to her parents.  On 9 May, he emailed yet a further spreadsheet. 

[25] Dr Mahlo’s daughter had worked for a while in Mr Hehir’s office.  They were not on friendly terms.  It seems that she had a mobile phone which was billed to his office.  On 15 May 2008, he sent an email to Dr Mahlo complaining that she had incurred charges of $97 on that phone in April and $65 in the first 12 days of May.  He complained that he had sent a text to Dr Mahlo’s daughter, not asking for money, but “…just wanting her to talk to me about curtailing her usage…” and that she had called him and was “…rude and abrupt”.[12]  Dr Mahlo replied by email on the same day, assuring him that she would pay the bill.  But her email continued:

“…I think she sees that the control of my life and hers by you has not been good for either of us.  I don’t think she can see … how much you have helped both of us.  But in the end, the lack of ‘separation of powers’ has not been good.  Neither she nor I are good at having our lives watched over – part of the phone, financial advice, job, computer privacy, rules, access to everything so that I, we, totally lose our independence.  Right or wrong, that is the way we are. …”[13]

Her email was in warm but firm language and was generally to the effect that Dr Mahlo had seen fit to keep some distance from Mr Hehir.  This was on the same day as the electronic document was modified.

[26] He continued to send her emails, including several on 17 May complaining about Dr Mahlo’s daughter and recalling  “…the good times…” they had had together.  But there were no exchanges concerning a new will. 

[27] I come then to the evidence of the deceased’s father, John Mahlo.  He is aged 81 and he did not begin his evidence well, having difficulty remembering the name of the street in which he lives at Orange.  But this may be a comparatively new address (it being different from his address when he swore his affidavits in 2008 and 2009) and, as his evidence continued, it appeared that he was fairly alert and with a reasonable memory overall.  I thought his difficulty at the outset was due to nerves.  According to his evidence, when he was staying with his daughter she said words to him to the effect that she was making a new will, which would appoint her brother Brett as the executor because she considered him to be particularly intelligent.  Later that day, he said, she handed him a piece of paper saying words to the effect “this is my will”.  He looked at it and saw that Dr Mahlo had signed it.  He did not wish to discuss the will with her because of its associations with death in the context of her recent suicide attempt.  He noticed that Dr Mahlo’s daughter was referred to as “Anastasia” because he had not known that this was her correct name, having always known her (as apparently others did) as “Anna”.  But beyond noticing these things it appears that he did not read the document.  From what he saw of it, it seemed the same as a printed version of the electronic document which he has since been shown.

[28] There is some uncertainty as to the precise date upon which these conversations occurred.  In his first affidavit, Mr Mahlo said that “to the best of my memory it was Friday 16 May 2008”.[14]  In his second affidavit, he said that “[i]t may also have been the day before…” but that he was “…certain it was not on the Saturday or Sunday before I left [on Monday 19 May]”.[15]  But in cross-examination, he said that the conversation occurred a number of days after that on which Dr Mahlo had found for him some websites about certain types of engines, a subject in which he had a personal interest.  The investigations of Dr Mahlo’s computer proved that those sites were searched on 16 May.  So according to that part of his evidence, the discussions about the will must have occurred on the Saturday and Sunday before he left, which is inconsistent with at least his second affidavit.  However, this inconsistency does not cause me to reject the substance of his evidence.  He could be innocently mistaken about the precise date of these conversations, whilst accurately recording the substance of them and what he saw of the signed document.  I accept his evidence, as I was asked to do by counsel for the plaintiff.

[29] It cannot be thought that the document which John Mahlo saw was a copy of the February 2008 will.  Dr Mahlo told him she was making a new will and it was in that context that she showed him a document.  A new form of will was created on her computer, and a possibility that there was some other “new” will is not at all indicated by the evidence.  More probably than not, he was shown a printed and signed version of the electronic document.

[30] For Mr Hehir, it was suggested that the electronic document may not have been made by Dr Mahlo, but instead by Dr Mahlo’s daughter.  She was not living with her mother at the time, although she would frequently visit the house and had access to the computer.  Mr Hehir says that when employed at his office, she would have learnt something about wills.  Her relationship with Mr Hehir was acrimonious, so that it is said that she would have been minded to prepare a new will which removed him as an executor and beneficiary as well as providing for immediate gifts to her and to her brother.

[31] However, it is far more probable that it was Dr Mahlo who prepared the electronic document.  Mr Hehir’s suggestion ignores the evidence of the email exchanges, in which he was providing Dr Mahlo with assistance to make a new will.  And it was very likely that Dr Mahlo would wish to make a new will, removing him as an executor and beneficiary, in the new circumstance that their de facto relationship had ended. 

[32] For the same reason, Dr Mahlo was looking to revoke the enduring power of attorney.  On 8 May, the day when Mr Hehir sent his email attaching copies of her February will and the power of attorney, Dr Mahlo’s computer recorded the creation of the electronic document.  Again on that day, it recorded access to the website of The Public Trustee of Queensland and the website of the Department of Justice and Attorney-General in relation to enduring powers of attorney and their revocation.[16]  Again on that day, there was a search of another Queensland government website, in relation to a change of registration of a motor cycle.  There was a motor cycle which was registered in her name and kept at her house which she and Mr Hehir had used.  Mr Hehir’s evidence was that they had agreed that he should have it.  As it happened, he collected it from her house on the day prior to her death. 

[33] On Mr Hehir’s computer, there is a recorded file note of 23 May 2008 at 2.48pm, in which Mr Hehir typed this:

“Karen has rang in to discuss some further Estate Planning issues again.  After playing with the Inheritance Calculator, she had me create for her, she is considering decreasing her MLC Ins Policy as she has concerns that should she die, that Anna will not have any desire to ever pursue a career path.  She said that she believes that Ben will be fine regardless.

I have suggested that she considers her options very carefully here as once this cover is reduced, she may find it very difficult to increase it at a later stage should she want to.

I have also suggested that there are other ways of addressing her concerns by use of her Will.”[17]

The fact that Mr Hehir saw fit to create a “file note”, as if this was merely a professional dealing, is difficult to reconcile with his case that they were still in a de facto relationship and that he was spending several nights a week with her.  Further, although it records some indecision by Dr Mahlo, what she was considering was apparently the amount of the policy, rather than the terms of the will.

[34] There is another document, in the same form of a “file note” by Mr Hehir, which is dated 7 May 2008.  But it was not found by the police when seizing material on Mr Hehir’s computer.  This encouraged the plaintiff to strongly challenge its authenticity, although the content of this file note is insignificant.  Nevertheless, I will set it out:

“Karen has rang [sic] in and asked if I could work out for her what the kids inheritance would be at age 25, 30 and 35.

I asked why she wanted this done and she said that she was concerned about Anna how she has been since she has left FAA.  She said that she was worried that should anything happen to her, Anna would never feel the buzz and fulfilment from a career that she has felt.  Ben’s fine, it is Anna that she is worried about.  She doesn’t want her to have too much money too quickly or even to rely on it as Anna wont move forward if she knows that it is always there as a backstop.

I have said that I will create a basic calculator on the weekend & mail it to her. 

I have discussed this with Veronica as I am sure that Karen is setting herself up for maybe another suicide attempt.”[18]

I am inclined to accept that Mr Hehir did make this file note on 7 May 2008.  The police record of what was found could be in error.  The note’s content is consistent with the email which Mr Hehir sent on 8 May.  Clearly that email was not sent without some discussion between them about Dr Mahlo’s intention to change her will.  Just as Mr Hehir recorded his conversation on 23 May by a file note, it is likely that he did the same on 7 May.  It provides another indication that the de facto relationship had ended. 

[35] On the morning of 28 May 2008, Mr Hehir awoke and noticed a missed call from Dr Mahlo during the night.  He tried to ring her but with no response.  He went to her house but only, he says, after ringing for an ambulance.  He arrived at the house before the ambulance did and found Dr Mahlo dead. 

[36] Mrs Ceinwen Mahlo is the wife of the plaintiff.  She answered her husband’s mobile phone at their home in Orange when Mr Hehir rang on the afternoon of 28 May 2008.  The plaintiff was then away but there was a conversation which Mrs Mahlo diarised only a few hours later.  I accept her evidence and the accuracy of that note.  The note included this:

“Spoke about will and thinks Karen has a second one which he believes Brett was the executor although he had never seen it.  Said he is the executor of other will.”[19]

Perhaps Dr Mahlo had told him of her intention to appoint the plaintiff as her executor, although there is no note or email which records that communication.  There is also the possibility that he had seen the electronic document or perhaps the printed version, which had disclosed that matter, although that is disputed by Mr Hehir. 

[37] Dr Ruhno had long been a friend of Dr Mahlo.  Upon hearing of her death, Dr Ruhno travelled immediately to the Sunshine Coast, arriving on 29 May 2008.  On the following day, she went to Dr Mahlo’s house and looked at her computer.  It seems that she was then in the company of Dr Mahlo’s son and daughter, who had suggested that Dr Mahlo had made a new will which could be found there.  With the daughter’s assistance, Dr Ruhno printed the electronic document and the hard copy was then taken to solicitors. 

[38] Neither Dr Mahlo’s son nor daughter gave evidence, although each was present throughout the hearing. 

The electronic document:  was it a will?

[39] As I have found, the electronic document was a document of the kind within s 18(1).  The question is whether the electronic document was intended by Dr Mahlo to “form” her will.  As the arguments accepted, the term “form” in s 18(2) is synonymous with “constitute”.[20]

[40] The application of s 18 is informed by case law both in Queensland and, over a longer period, in several Australian jurisdictions which have an equivalent provision.  Of particular relevance for the present case, is the judgment of Mahoney JA in The Estate of Masters (Deceased); Hill v Plummer who said:

 

“Section 18A(1) requires not merely that the document propounded ‘embody the testamentary intentions of’ the deceased but also that the deceased ‘intended the document to constitute his ... will’.  For the section to operate, the Court must be satisfied that the intention was that the document operate, in the sense to which I shall refer, as an actual act in the law.

There is, in principle, a distinction between a document which merely sets out what a person wishes or intends as to the way his property shall pass on his death and a document which, setting out those things, is intended to cause that to come about, that is, to operate as his will.  A will, like, for example, a contract, a deed, and a sale, is, as it has been said, ‘an act in the law’.  It is something to which the law attaches the legal consequences of that kind of transaction: see Salmond and Williams, Principles of the Law of Contracts, 2nd ed (1945) at 4 et seq, citing Salmond, Jurisprudence, 7th ed (1924) at 360.  Ordinarily, a transaction will or will not be an act in the law of the particular kind according to whether it was of the relevant form or nature and was intended to operate as such.  Thus, a document which is in form a will will not operate as such if it is, for example, a draft or ‘a trial run’, not intended to have a present operation.  A person may set down in writing what are his testamentary intentions but not intend that the document be operative as a will.  This may occur, for example, in informal circumstances, in a letter or a diary or the like.  What is to be determined in respect of a document propounded under s 18A is whether, assuming it to embody the testamentary intentions of the deceased, it was intended by the deceased as his testamentary act in the law, that is, to have present operation as a will.

This distinction is plain in concept.  But the application of it may give rise to difficulty.  Particularly is this so where the person whose intention is to be analysed is a lay person not fully familiar with the nature of a will or with the way in which the law in this regard operates.”[21]

Mahoney JA warned against an overly technical approach to this question, because the person in question is unlikely to have had the “conceptual precision in relation to the law of wills which a lawyer would have”.[22]  Nevertheless, the Court must be satisfied that the document which is to be proved as the will was intended to be a will, rather than something which was brought into existence as a step towards the making of a will.  Thus it has been said in several judgments that the Court must be satisfied that the subject document was intended “without more” to operate as a will.[23] 

[41] 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. 

[42] She had had fairly recent experience in making a will.  The February 2008 will was signed and witnessed.  The electronic document made specific provision for where her signature was to appear and where the signatures, names and addresses of witnesses were to be placed.  She had been reminded by Mr Hehir of the necessity for her signature, in his email of 8 May where he asked for a copy which he would “…peruse to ensure that it still will meet the legal criteria and the document will reflect your wishes will be met before resigning it”.[24]  She had researched relevant websites for information about making a new will and revoking the power of attorney.

[43] Upon the plaintiff’s case, Dr Mahlo must have thought that she had made her will when she last modified the electronic document, as she did at about 10.29pm on 15 May 2008.  That is difficult to reconcile with the fact that she subsequently printed from the electronic document and signed the paper version.  There is also the fact that upon the electronic document, she typed “16th” as the date in the space which had been left within the draft sent to her by Mr Hehir.  Assuming for the moment that she had not mistaken the date, when she last modified the document she did not date it that day, but the following day.  That is inconsistent with the notion that she believed that she had made a new will simply by typing or modifying the electronic document. 

[44] I am satisfied that Dr Mahlo intended to make a will in the terms of the electronic document.  That is demonstrated by the fact, as I have found, that she signed what I infer was a hard copy of that document.  But it is another thing to say that she intended the electronic document to be the will.  This is not a case such as Re Trethewey,[25] where a document upon the deceased’s computer was held to be his will but in circumstances where he had said on several occasions that he had left a will on his computer.  Dr Mahlo did not do that; instead she described the paper document as her will. 

[45] Accordingly, the claim will have to be dismissed.  The outcome is far from satisfactory, because according to the evidence and my findings, Dr Mahlo made a document which she intended to be her will.  But that is not the document the subject of this claim.  There was no alternative claim to have the paper document, which cannot be found, declared to be her will.  Thus there was no consideration in the evidence or the arguments as to whether there was a rebuttal of the presumption that this lost document was destroyed by Dr Mahlo, a consideration which would have been necessary for that alternative case.[26]

Footnotes

[1] Succession Act 1981 (Qld), s 5.

[2] Exhibit 2.

[3] Exhibit MLM-3 to the Affidavit of ML McNamara filed 18 March 2010 which is Exhibit 3 in these proceedings.

[4] Ibid.

[5] Exhibit MLM-1 to the Affidavit of ML McNamara filed 18 March 2010 which is Exhibit 3 in these proceedings.

[6] Exhibit MLM-2 to the Affidavit of ML McNamara filed 18 March 2010 which is Exhibit 3 in these proceedings.

[7] Ibid.

[8] Exhibit 14, paragraph 25.

[9] Exhibit 6, paragraph 39.

[10] Exhibit 16.

[11] Ibid.

[12] Exhibit 17.

[13] Ibid.

[14] Exhibit 4.

[15] Exhibit 5.

[16] Exhibit 39.

[17] Exhibits 16 and 40.

[18] Exhibit 15.

[19] Exhibit 12.

[20] The provision recommended in the report of the QLRC used the word “constitute” (Queensland Law Reform Commission, The Law of Wills, Report No 52). And so too did the Explanatory Note to the Succession Amendment Bill 2005 at page 10.

[21] (1994) 33 NSWLR 446 at 455-456.

[22] Ibid at 457.

[23] Hatsatouris & Ors v Hatsatouris [2001] NSWCA 408 at [56]; Oreski v Ikac [2008] WASCA 220 at [55]; cf Mitchell v Mitchell [2010] WASC 174 at [42] where it was suggested that the phrase “without more” could be an impermissible gloss upon the language of the section and Prucha v Standing [2011] VSC 90 at [7].

[24] Exhibit 16.

[25] [2002] VSC 83.

[26] See e.g. Cahill v Rhodes [2002] NSWSC 561 at [55].

Close

Editorial Notes

  • Published Case Name:

    Mahlo v Hehir

  • Shortened Case Name:

    Mahlo v Hehir

  • MNC:

    [2011] QSC 243

  • Court:

    QSC

  • Judge(s):

    McMurdo J

  • Date:

    19 Aug 2011

  • White Star Case:

    Yes

Litigation History

No Litigation History

Appeal Status

No Status