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  • Unreported Judgment

Re Stephen James Edmondson

 

[2013] QSC 54

 

 

 SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

DELIVERED ON:

13 March 2013

DELIVERED AT:

Brisbane

HEARING DATE:

28 February 2013

JUDGE:

Dalton J

ORDER:

1.Declare that the handwritten document which is exhibit A to the affidavit of Michael John Edmondson filed 18 September 2012 is the last will and testament of Stephen James Edmondson.

2.Grant of letters of administration with the will dated 9March 2012 attached to Michael John Edmondson.

3.The costs of and incidental to this application be paid by the estate of Stephen James Edmondson on an indemnity basis.

APPEARANCES:

CM Brierley, solicitor, for the applicant Michael John Edmondson

Mrs Muriel Jean Edmondson in person

Mr Bradley John Rogers in person

SOLICITORS:

New Way Solicitors for the applicant

[1] This is an application pursuant to s 18(2) of the Succession Act 1981 for a declaration that a document is a will and for a grant of letters of administration to the deceased’s brother with that will attached.  The document is headed, “The last will and testament of Stephen James Edmondson”.  It is dated 9 March 2012.  It uses the language of disposition in relation to Mr Edmondson’s assets – “I leave all my property …”.  It is signed by Stephen James Edmondson underneath his name printed out in handwriting.  It also records some precatory wishes in relation to Mr Edmondson’s body being left to medical science and otherwise some wishes in relation to cremation.

[2] There is no doubt that the handwriting and signature are those of the deceased.  The deceased leaves his property to his two brothers who seem appropriate beneficiaries.  The two brothers and the deceased’s mother appeared before me.  They all support the idea that his estate ought to be distributed in accordance with the handwritten document I have described above.  There is no disharmony between the three of them.  The deceased man was not married and had no children.  His father predeceased him.  Mrs Muriel Jean Edmondson, the deceased’s mother renounces all her right to administration of the will.

[3] Mr Edmondson died shortly after the date of the document, on 23 May 2012.  There are no issues as to want of testamentary capacity.

[4] Section 18 of the Succession Act provides:

 

(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] Mrs Muriel Jean Edmondson told me that her son told her on the night before the accident which killed him:

 

“That he was going to the Public Trustee and he had drafted what he wanted in the Will, to put – for the Public Trustee to put it down in legal terms because he didn't think what he had done was legal enough to cover the situation.

He told me that the night before he had the accident because he said, ‘You’ll be happy with me, Mum, I’ve got an appointment with the Public Trustee.  I’ve written down what I want done and, yes, I’ve got the appointment for them to put it down legally for me.”

[6] Mrs Edmondson also told me that on a number of occasions her son spoke to her about making a will and he always spoke in terms of leaving his property as he has by the handwritten document.

[7] All parties were content that Mrs Edmondson tell me these things from the Bar table and I act upon them as though they were evidence.

[8] Mr Michael Edmondson, the deceased’s brother swore to something very similar in an affidavit filed by the applicant on this proceeding, “The week before the deceased’s death, the deceased told me he had written a will himself which he intended to take to the Public Trustee on 21st May 2012 in order to have his Will formally prepared.”

[9] In Hatsatouris & Ors v Hatsatouris,[1] the New South Wales Court of Appeal proposed a three stage test in relation to the equivalent to s 18 of the Succession Act in Queensland.  That test asks: (a) was there a document; (b) did the document purport to embody the testamentary intentions of the deceased, and (c) at the time the document was made, or at some later time, did the deceased demonstrate that it was his or her intention that the document should, without more on his or her part, operate as his or her will.

[10] There is no question that the first two elements of this test are satisfied.  I have had some difficulty with the third.  It seems that at least on the night before his death, and perhaps in the week preceding it, the deceased had begun to worry that his handwritten document would not be sufficient legally to amount to a will and intended therefore to have a formal will drawn up.  Apart from the evidence contained in the handwritten document itself, there is no other evidence as to what the deceased intended at the time he made the handwritten document.  I think having regard to the language and relative formality of that document, together with its substance – that is disposition of property after death and arrangements for funerals, etc – the deceased did, at the time he made the handwritten document, intend it to be his will.  In these circumstances, I am prepared to make the declaration sought and further, to grant letters of administration with that handwritten document attached.

Footnotes

[1] [2001] NSWCA 408, 56.

Close

Editorial Notes

  • Published Case Name:

    In the will of Stephen James Edmondson

  • Shortened Case Name:

    Re Stephen James Edmondson

  • MNC:

    [2013] QSC 54

  • Court:

    QSC

  • Judge(s):

    Dalton J

  • Date:

    13 Mar 2013

Litigation History

No Litigation History

Appeal Status

No Status