Lindsay v McGrath[2015] QCA 206

SUPREME COURT OF QUEENSLAND

1. GOTTERSON JA:  I agree with the order proposed by Boddice J and with the reasons given by his Honour.
2. PHILIPPIDES JA:  I have had the advantage of reading the reasons of and orders proposed by Boddice J, with which Gotterson JA concurs.  However, for the following reasons, I take a different view and consider that the appeal should be allowed.

Background

3. The appeal concerns the estate of Nora Priscilla Lindsay, who died on 16 October 2012 aged 90.  The estate is comprised of her family home, which was sold for about $630,000, a small amount in a passbook at the Commonwealth Bank of Australia (CBA) and 15 CBA shares.
4. The deceased had divorced her husband in about 1971 and was survived by her son, Geoffrey Lindsay (the appellant), and her daughter, Heather McGrath (the respondent).  The appellant was granted letters of administration on intestacy on 17 June 2013.  Soon after, the appellant located a document (a copy of which is annexed to the reasons).  It was not disputed that the document was written and signed by the deceased.  That document was the subject of the application for probate brought by the appellant before the primary judge.

The decision at first instance

5. The learned primary judge, in his ex tempore reasons, made the following observations about the document and the envelope in which it was found:

“The informal document is signed by the deceased, is undated, but on the applicant’s evidence was prepared between 3 March 2005 and 2 March 2006. The document on its face contains many corrections and some deletions. It is necessary to set out some of the content of the informal document for the purposes of determining whether this court may exercise a discretion under section 18 of the Succession Act. The document is entitled Nora Priscilla Lindsay; her date of birth, 3^rd of March 1922; 28 Martha Street, Camp Hill, Queensland 4152:

Being of sound mind, this document is for the purpose of making the will of Nora Priscilla Lindsay.

The document then goes on to give some history of Ms Lindsay’s birth in England and her arriving in Australia on 1 May 1949. Relevantly, the document on page 1 contains the following statement:

To my only son, Geoffrey David Lindsay born 2 August 1952, I bequeath my home on property at Camp Hill, a high-set timber house with Besser block rumpus room built underneath, also contents of said house with the exception of china.

The document then appears to have been torn. In this respect the applicant has filed an expert handwriting report by John Heath, who at page 3 of his report states that the fragmented section nature [sic] of the will, while unusual, does not in itself constitute evidence indicative of falsehood. ‘The torn edge at the bottom of sheet 1, page 1 shows evidence of its having been torn through a line of writing.’

Whilst it is clear from the document itself that the torn page 1 does contain writing underneath the words which have been quoted above, the document continues to outline various reasons why the deceased did not wish her daughter or her daughter’s two sons to be in a position to challenge any will that she may make. In that regard the document continues for a further four pages outlining the history of the relationship between the deceased and various members of her family and, in particular, her daughter and her two grandchildren by her daughter.

The document was found with or in an envelope which is exhibit GLD3 to the affidavit of [the appellant]. That is a L&C Blue Ribbon Will envelope. This document has not been dated nor does it identify the deceased or, indeed, any executors under the will. Whilst the informal document has been signed by the deceased, it has not been witnessed by any person.”

6. His Honour set out the following factual background:

“Turning, then, to the factual matrix in which the document was made. It would appear that there is little dispute between the parties as to the fact that the document is in the handwriting of the deceased. There is no dispute between the parties as to where the document was located and how the document was stored. [The appellant] submitted that the nature of how the document was stored was a relevant consideration in determining whether this document may be construed as the will of the deceased. In that sense the document was found with other personal items in an old beauty case with leather gloves, scarves, costume jewellery, colour slides of her travels, and some postcards.

The informal document was not located in the deceased’s metal filing cabinet, which was where many of her personal documents – tax, medical and various receipts – were located. The informal document was found after the house was sold and the storage boxes had been moved to the [appellant’s] home at Annerley.”

7. His Honour then set out the relevant requirements of s 18 of the Succession Act 1981 (Qld) (the Act), as to the circumstances where a court may dispense with execution requirements for a will:

“(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 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)… ” (emphasis added)

8. His Honour had regard to the decision of the New South Wales Court of Appeal in Hatsatouris v Hatsatouris,^[1] where, in construing a similar provision in New South Wales legislation,^[2] it was held that three questions of fact arise for consideration:
   1. Was there a document?
   2. Did that document purport to embody the testamentary intentions of the relevant deceased?
   3. 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?
9. As to the third requirement, the primary judge referred to the following passage relied upon by the appellant from Oreski v Ikac,^[3] concerning the equivalent Western Australian provision:^[4]

“It is, however, important always to bear in mind that whilst it is necessary that the document in question sets out the deceased’s testamentary intentions, that is not of itself sufficient. Section 34 does not enable any document which expresses the deceased’s testamentary wishes to be admitted to probate. The document must be intended to be the legally operative act which disposes of the deceased’s property upon their death, that is, it must have been intended by the deceased to have present operation as his or her will. A person may have set down in writing their testamentary intentions but not intend that the document be operative as a will. Thus, for example, it will not be sufficient if it is a document intended to record gifts or intended gifts during the deceased’s lifetime or to be a note of instructions or a draft will or a ‘trial run’.”

10. Before the primary judge, the respondent disputed that the second and third requirements set out in Hatsatouris were satisfied.  His Honour summarised the submissions made before him as follows:

“In the present case it is submitted by Mr Williams, who appears for the respondent, that the informal document does not fulfil the test identified in section 18(2), but, in particular, to the two tests identified by the New South Wales Court of Appeal, which had been adopted in Queensland.

First of all, Mr Williams points to the fact that the informal document contains only one gift and that is the gift of the real property. The remainder of the deceased’s property is not dealt with. If the informal document is admitted to probate, the effect would be a partial intestacy in respect of the deceased’s passbook account and shares. [The appellant], however, points to the fact that this does not displace the fact that the testamentary intention of his mother may be discerned from the document. This is because the moneys in the Commonwealth Bank account and the 15 Commonwealth Bank shares constitute the amount which would be involved in the cost of administrating the estate.

Mr Williams points to other facts to indicate that the informal document does not satisfy the necessary test. He submits that there is evidence that the deceased told the respondent that she had made a will with the Public Trustee of Queensland but that that will was revoked some time around the mid-1990s. It can be reasonably inferred, he submits, from this that the deceased was, in general terms, aware of the importance of the act of making a will and of the need for her signature to a will to be correctly witnessed.

[The appellant], however, points to the fact that the Public Trustee will was made when his mother was much younger. The informal document here was made at a time when she was 82 to 83 years of age. When the will with the Public Trustee was made in 1986 there was no direct evidence that it was explained to her what were the formal requirements of the making of the will, including the requirement that two witnesses attested to her signature.

Mr Williams, however, submits that it may be reasonably inferred from the existence of the L&C Blue Ribbon Will envelope in the deceased’s wardrobe that, at some stage, the deceased was in possession of an L&C Blue Ribbon Will kit. It is not clear whether the will form was completed or what became of it. The envelope cover contains notes about ensuring that the Blue Ribbon Will is properly signed and witnessed and contains the following prominent words in large bold type:

Upon my death, I direct that my will be handed immediately to my executors.

Again, Mr Williams submits that it can be reasonably inferred from this and from the fact that the deceased made a will in 1986 with the Public Trustee that the deceased would have been aware that her will should appoint an executor and should be properly signed and witnessed. The informal document, he submits, does not contain any appointment of an executor or make any reference to an executor and her signature is not witnessed.”

11. His Honour’s reasons for dismissing the application were stated as follows:

“Whilst the informal document does refer to the deceased bequeathing to her son, the applicant here, real property, such a statement in itself is insufficient when one has regard to the whole of the document and, in particular, to the fact that the document is one said to be for the purpose of making the will rather than the will itself. In those circumstances, I am not satisfied that the relevant test required by an exercise of discretion under section 18(2) of the Succession Act has been fulfilled. I would dismiss the application insofar as it seeks probate in relation to the informal document.”

The issue on appeal

12. Before this Court, the issue for determination was whether the document, which had been written and signed by the deceased but not witnessed, met the requirements of s 18 of the Act, in that the deceased intended the document to form her will (it no longer being disputed that the document stated the deceased’s testamentary intentions).
13. In considering that question, the following observations of Kirby P in The Estate of Masters; Hill v Plummer, Plummer v Hill,^[5] are pertinent:

“A reflection on the foregoing background to the enactment of s 18A of [the New South Wales legislation] demonstrates that, by adopting the amendment to the Act, parliament intended to achieve an important reform. It acknowledged the injustices which the strict application of the law as to formalities of wills had occasioned in particular cases. It accepted, by inference, the Law Reform Commission’s rebuke that ‘the rule of literal compliance can produce results so harsh that sympathetic courts are inclined to squirm’. True, it did not follow precisely either the Queensland or South Australian precedents.^[6] It still required that the propounded document should constitute ‘a will of the deceased person’. But self-evidently this could not mean a ‘will’ in the full formal sense of the word. Otherwise, the propounded document would be admitted to proof and there would be no need for the remedial operation of s 18A(1) of the Act. A too rigid insistence that a document should have the formalities or other characteristics necessary to constitute it the deceased’s ‘will’, would narrow significantly the operation of the intended reform. Yet by the requirement that the document which, by definition embodies the testamentary intentions of a deceased person, should be described as constituting ‘his or her will’, the legislature plainly drew a distinction between those documents of testamentary intentions which constituted the deceased’s will and those which did not. I regard the distinction thus made as one between a generalised homily as to testamentary intentions (such as Powell J thought the letter to Ms Plummer involved) and a document which, although falling short on formalities, sufficiently evidences the fact that by it the deceased intended to govern the disposition of his or her properly after death.

…

A too stringent requirement of proof that a propounded document, otherwise clearly embodying the testamentary intentions of a deceased person, constituted his or her will would undo the reform proposed by the Law Reform Commission and accepted by parliament. Courts would continue to squirm at the results where the testamentary wishes of the deceased are sufficiently disclosed but cannot be given effect to because they fall short, in the court's conception, of constituting the deceased's ‘will’. To adopt such a stringent approach is, in my respectful view, to permit the conceptions about the formalities required for a ‘will’, which preceded and explained the enactment of s 18A of the Act, to rule us from the statutory grave.” (emphasis added)

14. In Costa v The Public Trustee of NSW,^[7] Hodgson JA identified the critical questions before the Court as: whether the document purported to govern the disposition of the deceased’s property after his death; and whether the deceased actually intended it to do so.  His Honour expressly agreed with the way the question was posed in Estate of Masters by Kirby P, namely, whether the document “sufficiently evidences the fact that by it the deceased intended to govern the disposition of his or her property after death”.  Basten JA^[8] pointed to the risk, when considering that question, in adopting the language of an intention that “the document operate … as an actual act in law” which was the terminology used in Estate of Masters by Mahoney JA.^[9]  (Similar caution is to be exercised in respect of the observations in Oreski,^[10] cited by the primary judge that the “document must be intended to be the legally operative act which disposes of the deceased’s property upon their death.”)  As Basten JA commented in relation to  Mahoney JA’s terminology in Estate of Masters:^[11]

“This terminology was not adopted by Kirby P or Priestley JA and, whilst it contains nothing erroneous as a matter of principle, it could, if applied without caution, distract attention from the statutory language. The question is whether the deceased intended that the document constitute his or her will. That question will depend in part upon his or her state of knowledge and understanding of the nature of a will. In Pahlow-Silady v Siladi [1997] NSWCA 241, Powell JA rejected the proposition that because Mr Silady had made a formal will some 19 years earlier he would ‘recall the formalities that then attended the process or would necessarily assume, even if they were recalled, that these formalities were essential to validity’: at 17. The state of knowledge of the putative testator is obviously a relevant consideration in assessing intention, but the ultimate question is one of satisfaction as to that intention.”

15. With respect to the third requirement expressed in Hatsatouris, the appellant referred to The Public Trustee v Gerritsen,^[12] which concerns the situation where, as is the case here, the document in question is written and signed by the deceased.  The following observations of Beech J provide assistance:^[13]

“The third requirement [in Hatatsouris] is stated in a way which is somewhat more specific than the language of the statute. The language of s 32 only requires the court to be satisfied that the person intended the document to constitute their will. I refer to what I said in Dalton v Dalton [2008] WASC 56 [47]:

‘There is reference in Hatsatouris to the need for “some act or words” to demonstrate the intention. That is, I think, explicable by the nature of the issue in Hatsatouris, Perriman and Oreski. In all those cases the issue was whether an unsigned document, not written or at least not proved to have been written by the deceased, should be declared to be the deceased’s will. In that context it is necessary that there be some “act or words” of the deceased which demonstrated the intention that the document operate as his or her will. If a person wrote and signed a document, there is no necessary requirement in every case to identify separate acts or words of the person as manifesting an intention that the document constitutes the person’s will. In some such cases, that conclusion may be able to be drawn from the terms of the document written and signed by the person.’”

Discussion

16. The issue on the appeal involves drawing inferences in respect of a particular factual question arising for determination under s 18 of the Act as to whether the deceased intended the document to form her will.  To that there can be only one unique answer, which, given there is no dispute as to the primary facts, this Court is in as good a position as the primary judge to determine.^[14]  I acknowledge the weight to be given to the primary judge’s conclusion.  However, in my view, having regard to the matters identified below, the proper inference to be drawn is that the deceased intended that the document form her will; that is, that it govern the disposition of her property after her death.
17. As the appellant submitted, the conclusion that the deceased intended that the document form her will is borne out by the form and content of the document.  I do not therefore consider that the use of the words “… for the purpose of making the will of Nora Priscilla Lindsay” are ambiguous when regard is had to the document as a whole.
18. It is apparent from the document that the deceased regarded its creation as being an important act, carrying consequences in terms of the distribution of her estate.  In that regard, it is relevant that the deceased commenced the document in a formal or solemn manner by setting out her name, address and date of birth at the top of the first page.  Further, she referred to herself as “being of sound mind”, adopting language commonly used (and generally understood as being used) in wills.  In addition, the deceased used dispositive language (“bequeath”) in respect of the gift of her only substantial asset, being her home, to the appellant.  The deceased used the same language in making it clear that the respondent and the respondent’s two sons were not to benefit from her estate.
19. The fact that the document was written by the deceased and signed by her and that she initialled many deletions, corrections and alterations are also factors to which significant weight should be afforded when determining the intention of the deceased.  In particular, the act of signing the document provides strong support for the conclusion that the deceased intended that the document itself constitute her will, rather than merely represent a draft or a working note or provisional instructions for a subsequent will.  “A signature is, and is widely recognised even by the general public as being a formal device”.^[15]
20. The location of the signature at the bottom of page 4, at the end of the portion of the document headed “Appendix”, is also relevant.  The “Appendix”, comprising the second, third and fourth pages of the document, sets out the deceased’s reasons for not making provision for the respondent and the respondent’s children (they being persons that it would ordinarily be expected that she would have in contemplation when making her will).  The appendix is stated to have been written out of a concern that the respondent and her sons might contest what the deceased referred to as “my will”.  That page 5 appears to have been added after the signature is of no moment.  What is contained on page 5 is simply an expression of the deceased’s wish or desire that an item of furniture never be permitted to be owned by a certain person.  Moreover, that the deceased also referred in the “Appendix” portion of the document to her age and various medical conditions suggests that the document was made in contemplation of her death.  Also, the deceased’s reference to “why should they share in my hard earned money” can only be a reference to what would occur with her money upon her death.  That provides further confirmation that the deceased intended that the document itself govern the disposition of her property on her death and constituted her will.
21. The fact that the deceased placed the document in an envelope that stated in bold “THE ENVELOPE CONTAINS THE WILL OF” also supports the inference that the deceased considered that the document formed her will.  That is particularly so given the deceased’s actions in including a copy of her birth certificate and record of her personal and financial circumstances (referring to the location of the title document of her house).  As the appellant submitted, that documentation was in the nature of an executor’s dossier.
22. While the deceased made some amendments (by way of deletions, corrections and alterations) to the document, they were minor, and included such matters as correcting spelling errors and updating the deceased’s age (on page 4).  No amendments were made to the dispositive parts of the document, being the bequest to the appellant.  Nor were any amendments made to the statement at the top of page 2 excluding the respondent and her children.  The deceased did not strike through her signature on page 4.  There is nothing in the nature of those amendments to suggest that the document was a work in progress and subject to further deliberation.  Indeed, the amendments indicate that the deceased continued to adopt it as the document governing the disposition of her property.
23. Nor should it be inferred from the fact that the bottom portion of page 1 was torn off by the deceased that the document was the subject of ongoing deliberation.  Even if that portion was removed at a time after the document was signed, the conduct of removing that portion does not suggest that the deceased did not intend the document to operate as her will.
24. While the document failed to deal with the china or the small amount in the bank account or the shares, bearing in mind the value of those items, it should not be inferred from the deceased’s failure to deal with them that she had not finalised her will and thus did not intend the document to operate as her will.
25. Nor should it be inferred that the deceased did not intend the document to form her will because she was aware of witnessing requirements for a will under the Act and did not follow them.  As the appellant submitted, the only basis for that contention is that the deceased had previously made a will with the Public Trustee of Queensland in 1986 and that the envelope containing the document referred to a “properly signed and witnessed” will.  There was no evidence that it was explained, when the deceased made a will in 1986, that the witnessing requirements were essential to the validity of a will and, in any event, it is not self-evident that an elderly lay-person, who signed a will very many years ago, would recall formalities that attended the process.^[16]
26. Also relevant is the deceased’s conduct in 2008.  There is no basis to doubt that the document in question was the document that the deceased was referring to when she informed the appellant in April 2008 that she made a will leaving everything to him.  The deceased’s statement as to the content of her will substantially accords with the content of the document.  As the appellant submitted, to the extent that there was any doubt that the deceased had finalised her testamentary intentions in the document by March 2006, the deceased confirmed, by her statement made in April 2008, that she intended that the document would form her will.  As the deceased was 83 years of age at the time the document was created, and 85 years of age when she informed the appellant of her will and suffering from ill health (as she stated in the document), an inference should be drawn that she referred the appellant to the document because she intended that it would take effect upon her death.
27. To apply the requirements of s 18 of the Act too stringently in this case would result in an entire intestacy despite the evident intent of the deceased to provide her estate to the appellant.  Furthermore, such a result would fail to give effect to a document intended by the deceased to form her will and would frustrate the intention of parliament as to the operation of s 18.^[17]
28. BODDICE J:  The appellant is the Administrator of the estate of his mother, Norma Priscilla Lindsay (“the deceased”), pursuant to Letters of Administration granted on 17 June 2013.  The respondent is the daughter of the deceased, and the sister of the appellant.
29. On 4 September 2014, the primary Judge dismissed the appellant’s application for an order that the Court pronounce in solemn form, as the lawful last Will of the deceased, a handwritten document on which the deceased had written her name but which was not witnessed in accordance with the requirements of s 10 of the Succession Act 1981 (Qld) (“the Act”).
30. The appellant appeals that decision.  At issue is whether the Court ought to have been satisfied the requirements of s 18(2) of the Act were met in that the handwritten document was intended by the deceased to form her last Will.

Background

31. The deceased was born on 3 March 1922.  In or about 1951, she married David Hill Lindsay.  There were two children from the marriage.  The deceased divorced her husband in 1971.  They did not remain on amicable terms.
32. The deceased died on 16 October 2012, aged 90 years.  She was survived by her two adult children, the appellant and the respondent.  At the time of the application they were aged 62 years and 60 years respectively.
33. The deceased maintained a close relationship with the appellant throughout her life.  In 2001 or 2002, the appellant began construction of a granny flat at his residence.  The deceased was proposing to reside in that flat.  In early 2007, the deceased commenced occupation of the flat.  However, the deceased later returned to live in her own home.  The appellant and his family moved into her home.  When the deceased required more care, she moved to an aged care facility.  She remained in that facility from 2010 until her death.
34. The deceased did not enjoy as close a relationship with the respondent as with the appellant.  The deceased was estranged from the respondent and her two children between 1999 and 2006.  That estrangement seemed to stem from the deceased’s belief that the respondent wished the deceased to maintain an amicable relationship with her ex-husband, the respondent’s father.  The deceased also perceived the respondent’s children lacked respect for her on various occasions.  There had been some reconciliation in the relationship between the deceased and the respondent after 2006.  The respondent visited the deceased from time to time in the ensuing years, including when she entered the aged care facility.

Estate

35. The deceased’s estate consisted of real property, being her family home, a small amount of money in a passbook account, and a small shareholding in a bank.  By the time of the application, the real property had been sold but the proceeds were still retained by the estate.  No distribution has been made pursuant to the grant of Letters of Administration.

Application

36. The deceased made a Will with the Public Trustee in December 1986.  The deceased subsequently revoked that Will.  As it was believed the deceased died without a last Will, the appellant applied for, and was granted, the Letters of Administration on the basis of an intestacy.
37. On 9 July 2013, the appellant located the handwritten document in a storage box containing items removed from the deceased’s family home.  The appellant, in his role as administrator of the deceased’s estate, brought an application, filed 15 August 2014, seeking an order that the Court pronounce that document in solemn form as the deceased’s last Will.

Handwritten document

38. The handwritten document was located in a “L & C – Blue Ribbon Will envelope” which had on its front, in bold type, the words “The envelope contains the Will of”.  The envelope also contained a copy of the deceased’s birth certificate and a pro forma sheet completed by the deceased setting out her personal and financial circumstances, including the location of the title document for her home.
39. The envelope was found in the deceased’s beauty case.  The beauty case contained various other personal items, including colour slides and postcards.  The beauty case had been packed into a storage box in late 2010 after the deceased moved to the aged care facility.  At that time, the deceased requested the appellant clean out her house.  The deceased’s possessions were packed into storage boxes which were stored at her house until it was sold.  The storage boxes were then transferred to the appellant’s house.
40. The handwritten document consists of five pages.  There is no dispute the handwriting is that of the deceased.  It is apparent from a perusal of the document the deceased altered and added to it at differing times following its initial creation.  Some of the handwriting is in blue pen, while other parts are in black pen.  In addition to those handwritten alterations and additions, the bottom of page one and the top of page two of the document have been torn off at some time.  There is no suggestion anyone other than the deceased tore the document.
41. The first page of the handwritten document was in the following terms:

“Nora Priscilla Lindsay    Date of Birth 03.03.1922

28 Martha Street

Camp Hill   Queensland   4152

Being of sound mind this document is for the purpose of making the will of Nora Priscilla Lindsay.

Born in England in the Village of Aldercar near Village of Langley in Derbyshire England UK (postal address is Nottingham).

Arriving in Melbourne on 1st May 1949 MV Georgie.

Becoming a Naturalised Australian 26.01.1994.

To my only Son Geoffrey David Lindsay born 02.08.1952 I bequeath my Home on Property at Camp Hill a high set timber House with Besser Block Rumpus Room built underneath.  Also contents of said House with the Exception of China.”

At this point, the page was torn off.  It is apparent there was writing on the torn-off section when it was removed by the deceased.

42. The second page of the handwritten document was in the following terms:

“To my only Daughter Heather Dawn McGrath and her Two Sons Geoffrey and Jason McGrath I Bequeath Nothing the Reason being as recorded on the follow Pages.

APPENDIX

This document is Written should my Daughter Heather Dawn McGrath and her two sons Geoffrey and Jason McGrath contest my Will.

Heather has not visited my house where I live alone some time before 1st August 1999 around the time her Elder Son Geoffrey was married.

When my daughter Heather was Seventeen years old she told me she was Pregnant and would be married at Eighteen in 1972.  One thing she was Positive about, She did not want her father David Hill Lindsay Invited.  My divorced Husband of 19 years of Cruelty.  My daughter Heather expected me to give her a White Wedding and Reception, this I did.  As the time approached the Birth of her child, as her husband is an alcoholic she approached me for the Layette and this I acquired for her.  When her son Geoffrey was in Grade One or Two he told me his Dad was Knocking his mother my daughter Heather to the Kitchen floor every night.”

43. The third page of the handwritten document was in the following terms:

“Finally Heather left her husband, She came to me her mother asking for $500 (Five hundred dollars) for Flat Rent and Food.  This amount I gave to her, however when she asked me for more cash I said my Wage would not go that far and said She and her two children could live at my house with food provided and this she did.  Sometime later she and the boys moved back home.  When Heather’s Elder Son Geoffrey married in 1999 she rang to say all Grandparents were together at one table for Reception.  I told her I could not possibly sit next to a man who had given her nineteen years of cruelty, plus years of Post Traumatic Stress, she replied that is the way things are arranged.  She would not ask if it could be changed.  Her father would be there with his third wife.  Heather, my daughter came to borrow my viewer for slides and photos and only returned viewer.

Re Geoffrey McGrath

At the 21st Birthday for Younger Son Jason’s Birthday Party where I was sitting with Jasons Grandma, Geoffrey the Elder Son came to his Grandma, hugged and kissed her avoiding eye contact with myself, he quickly turned and walked away.  What an insult it was for me, he never spoke to me all evening.  I was never invited to his home after he was married.  But Heather’s Father and 3rd wife are always there.  Ever since the boys were born I sent Christmas, Birthday Presents and when they were older I sent them money.  They rang and thanked until adults but then never did, so I stopped sending anything.

44. The fourth page of the handwritten document was in the following terms:

“Not knowing what grandson Geoffrey McGrath was interested in, I used to send Gift of money for Birthday and Christmas, for years, then he stopped ringing me to thank me so after two years I gave up.

Re Jason McGrath my daughter Heather’s younger son

My Grandson Jason was like his brother, after becoming a young man he never visited my home until he had a good reason for doing so, this being he and his girlfriend were going to England and he required a loan of my Birth Certificate to enable him, as I am English Born, coming out here to Australia in May 1949.  I learned much to my anger that while Jason had the Certificate he said his mother also wanted to use it but I had no say in the matter as I was not consulted.  When Jason returned the said Certificate he said he would send some postcards, but ONE Postcard after arrival January 2001 never a word since.  Whether they are still there or not I have no idea.  I am tired of being used by the three of them.  My daughter and her two Sons.  I was 83 on 3 March 2005, have a Heart Pacer in my chest, plus on warfarin.  I live alone, the Cardiologist informs me I am now a candidate for a Stroke or Heart attack.  I am on the WARFARIN THERAPY to keep the blood thin and to try and prevent these things from happening.  The left ventricle is in prolapse, I have osteoporosis, Arthritis.  In 2002 I was confined to Bed for two weeks with Influenza.  2003 I was in Hospital for Pneumonia and Kidney Infections but those three, not interested, never visited so I ask, why should they share in my hard earned money for 24 years at QUF.  Heather is a School Registrar and has plenty of money, 4 houses etc.

Nora Priscilla Lindsay”

45. The fifth page of the handwritten document was in the following terms:

As Regard to my [nephew’s] wife Valerie Elton she is never to become the owner of my Antique Sideboard which many times she came to my house to pick up her daughter, Donna Elton, who I was looking after every Saturday all day for no payment, to enable her mother to work Saturday as she worked there also Monday to Friday.

Valerie and her Husband my nephew, Ronnie Elton my late sister Gwen’s Son, would purposely come as they believed I had [Alzheimer’s] disease and try to acquire my Sideboard.  I at the time had [an] undiagnosed complaint of “Ross River Virus” which was not known to be as far down the Coast as Brisbane.  When after 4 years of sickness from the said illness a New Doctor I visited confirmed it was Ross River Virus and would take another 2 or 3 years to recover.  My weight was a mere 6½ Stone.  Heather and her sons Geoffrey and Jason were not interested and had no feelings for my state of health as they never once visited my home.

The alterations to the document included changing dates and adding items to the Appendix setting out the reasons for bequeathing nothing to the respondent or her two sons.  There were no handwritten changes to the paragraph on page 1 bequeathing the house property and its contents to the appellant, although the bottom of that page had been torn off.

Evidence

46. The affidavit material relied upon at the hearing included affidavits from the appellant and the respondent.  In broad terms, the affidavit from the respondent confirmed the events set out by the deceased in the Appendix had occurred, although the deceased’s interpretation of those, and of the motivation of the respondent and the respondent’s children was in dispute.
47. The affidavit material also revealed:

(a)Around the time the deceased revoked her Will made by the Public Trustee, she told the respondent she intended to divide her estate equally between the appellant and the respondent.  The breakdown in the relationship with the respondent occurred after that conversation.

(b)In July 2002, the deceased told the appellant he would receive her house or the proceeds of its sale.

(c)In early 2008, the deceased told the appellant she had written a Will leaving “everything” to him.  The deceased said she was grateful for everything he had done and that the respondent wants for nothing and would be taken care of by her father in his Will.

Primary Judge

48. The primary Judge found that whilst the handwritten document did contain a bequest of the deceased’s real property to her son, that statement in itself was insufficient to satisfy the requirements of s 18(2) of the Act when regard was had to the whole of the document.  The primary Judge particularly noted the document was said to be “for the purpose of making the Will” rather than the Will itself.
49. The primary Judge also noted the handwritten document had been found with personal items in the beauty case.  It was not located in the deceased’s metal filing cabinet, which contained many of her personal documents, such as tax and medical documentation.

Submissions

50. The appellant submits the primary Judge ought to have been satisfied by the evidence that the deceased intended the handwritten document to form her last Will.  The deceased styled the document in the manner of a Will, and signed it.  The deceased placed the handwritten document with her birth certificate and records of her personal and financial circumstances, including information as to the location of the title document for her house (her major asset), in an envelope that stated in bold “the envelope contains the Will of”.  In a conversation with the appellant in early 2008, the deceased referred to having made a Will to the same effect as the handwritten document.
51. The appellant submits the primary Judge erred in the construction of the phrase “for the purpose of making the Will” on the first page of the handwritten document.  The totality of the circumstances support a conclusion that that expression was used to convey it constituted the Will itself, not that it was in contemplation of making a Will at a later time.  The appellant submits that in any event the deceased later adopted and authenticated the document as her last Will.  The fact that she wrote her name on the document indicates finalisation.
52. The respondent submits the primary Judge correctly concluded the words “for the purpose of making the Will” supported an inference the deceased intended the handwritten document to be for the purpose of making a Will later, rather than that it constituted her Will.  Support for that conclusion was found in the circumstances that the document is undated, contains many corrections and some deletions, has sections torn from it, contains a significant amount of historical material not in the nature of an expression of testamentary intention, does not dispose of the deceased’s whole estate and did not purport to appoint an executor of the deceased’s estate.  Further, whilst the deceased wrote her name on it, it has not been witnessed by any person.
53. The respondent submits the primary Judge correctly concluded the evidence did not satisfy the essential element in s 18(2) of the Act.  There was insufficient evidence to establish the handwritten document was regarded by the deceased as final.  The alterations to it and use of different pens supported a conclusion it was in the nature of notes for the future preparation of a Will.  There was also insufficient evidence to demonstrate that when the deceased spoke to the appellant in 2008 about having made a Will, she was referring to the handwritten document.
54. Further, the envelope in which the handwritten document was contained had places for the name of testator, the date of the Will and the name of the executors, all of which had been left blank.  These matters were significant, as the deceased was “generally quite precise and accurate in her writing …”.^[18]

Legislation

55. Section 10 of the Act sets out the requirements for the execution of a valid Will.  Relevantly, those requirements include that the signature of the testator be made or acknowledged in the presence of two or more witnesses, present at the same time, who must also attest and sign the Will in the presence of the testator.  There is, however, power for the Court to dispense with these execution requirements.
56. Section 18 of the 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)This section applies to a document, or a part of a document, whether the document came into existence within or outside the State.”

Applicable principles

57. In Hatsatouris v Hatsatouris^[19] 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. was there a document,
2. did that document purport to embody the testamentary intentions of the relevant Deceased?
3. 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.^[20]

58. The second element requires a consideration of the expression “testamentary intentions”.  In The Estate of Masters; Hill v Plummer, Plummer v Hill^[21] 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.^[22]  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.^[23]
60. Great care is to be taken in the evaluation of the relevant evidence.^[24]  To satisfy the onus, the evidence must show more than that the particular document sets out the deceased’s testamentary intentions or that it is consistent with other statements the deceased made about what he or she wanted to happen to the property upon death.  The evidence must establish on the balance of probabilities that the deceased wanted the particular document to be his or her final Will, and did not want to make any changes to that document.^[25]
61. The expression “without more”, used by Powell JA in Hatsatouris emphasizes the distinction between a document which merely records testamentary intentions and a document which records such intentions in a complete and concluded way such that it is intended by the author to operate as his or her last Will.  On this aspect, the observations of Habersberger J in Fast v Rockman^[26] are apposite:

“Like Murray J in Dolan v Dolan, I consider that the words ‘without more’ have been mentioned by way of emphasising that the court must be satisfied that the deceased really did intend the terms of the document – ‘without any alteration or reservation’ – to be the manner in which his or her property was to be disposed of upon his or her death.  Or as EM Heenan J put it in Mitchell v Mitchell, the words ‘without more’ were used in Oreski v Ikac:

‘… to emphasise the need for the document being propounded for proof as an informal will to express the concluded testamentary intentions and decision of the deceased rather than being some provisional, preliminary or tentative proposal which had not by then received the deceased’s full assent.’”

(Footnotes omitted)

62. Documents which contain only preliminary, tentative or incomplete expressions of a deceased’s testamentary intentions, or which on the evidence are demonstrated to have been prepared for consideration, further thought, deliberation or possible revision, will not suffice for the purposes of s 18 as the evidence will not establish the document in question embodied the settled testamentary intentions of the deceased.^[27]
63. Where the issue for determination on appeal is the intention of the deceased, a consideration of the primary determination is to be approached in accordance with the principles in Warren v Coombes.^[28]  However, as the intention of the deceased is ultimately a question of secondary fact, to be determined by inference from the primary facts as found, an appellate court may intervene if it comes to a different conclusion to the primary Judge, as there can ultimately be only one unique answer to the question whether a particular intention is to be inferred from the proved primary facts.^[29]

Discussion

64. The only aspect of s 18 in contention before the primary Judge, and on appeal, was whether the evidence was sufficient to satisfy the Court that the deceased intended the handwritten document to form her last Will.
65. There are a number of items of evidence which supported a conclusion it was the deceased’s testamentary intention that the appellant receive the benefit of her estate, and that the respondent receive nothing from her estate.  First, there was the specific bequest in the handwritten document of the deceased’s house property and its contents, with the exception of china.  Second, there was the specific provision in the handwritten document that the respondent was bequeathed nothing.  Third, there was the deceased’s statement to the appellant in 2008 that she had made her Will and left everything to him.
66. However, s 18 does not merely require that the evidence establish that the document propounded to form the deceased’s last Will purports to state the deceased’s testamentary intentions.  What must be established, on the evidence, to the Court’s satisfaction, is that the deceased intended the particular document to form her last Will.  On this issue the evidence was far from clear.
67. First, the words “for the purpose of making her will” are equivocal.  They are open to competing interpretations, namely that the document is her Will, or is only for the preparation of a Will at a later time.  The first page of the documents contains details in the nature of personal information relevant for a person preparing a later Will.
68. Second, whilst the handwritten document contained words bequeathing the deceased’s major asset to the appellant, and was found in an envelope said to contain her Will, there is no evidence the Will referred to by the deceased in her conversation with the appellant in 2008 was this handwritten document.  The handwritten document does not accord with the deceased’s statement that she had left “everything” to the appellant, as the handwritten document, even in its initial form, contained exceptions.  These exceptions, now torn from the document, may have given content to the reference on page 5 to ownership of the deceased’s antique sideboard.
69. Importantly, even after the tearing-off, the handwritten document contained an exception in respect of china.  The china is not disposed of elsewhere in the document.  The handwritten document also did not deal with the deceased’s other assets, being moneys in a bank account and her small shareholding in a bank.  Whilst the value of those items may be relatively insignificant, the failure to address them is inconsistent with the statement the deceased had left “everything” to the appellant in her Will.
70. Third, there is no evidence as to when the deceased made the alterations and deletions to the handwritten document.  Whilst it is probable the handwritten document had been created by 2008, the evidence does not establish at what time it was materially altered by the deceased tearing off the bottom part of page one and the top part of page two.  There is no evidence the deceased had formed an intention that she would not further alter the document in the future, either by hand or by further tearing of it.
71. The fact the hand-written document was found in an envelope marked “this is the Will of” does not assist on this aspect.  There is no evidence the envelope was sealed and none of the formal parts on the envelope were completed by the deceased.  It is also unclear on the evidence whether the deceased altered the handwritten document after placing it in the envelope.  The use of the envelope is equally consistent with the deceased having an intention to further alter the document in the future.
72. The fact the deceased wrote her name on the handwritten document does not assist on this aspect.  That writing is not in the form of a signature.  It does not accord with examples of the deceased’s signature on other documents.  Further, that writing occurred at the time of the initial preparation of the handwritten document and is located part way through the document.  There is no subsequent affixing of a signature suggestive of an intention the handwritten document was now in its final form.
73. The lack of evidence of the deceased having formed this general intention is significant.  The evidence must establish that, on the balance of probabilities, the deceased did not want to make changes to that document.  The fact that changes were made is indicative of the deceased having given the contents of the handwritten document further consideration after its initial preparation.  That is consistent with the handwritten document being subject to “further thought, deliberation or possible revision”.^[30]  Such a document is insufficient to satisfy the requirements of s 18 of the Act as the evidence will not establish that that type of document embodied the settled testamentary intentions of the deceased.
74. The evidence placed before the primary Judge, at best, established that it was the deceased’s testamentary intention that the appellant receive the benefit of her estate, with the respondent to receive nothing.  The evidence did not establish, on the balance of probabilities, that the handwritten document, in that form, was intended by the deceased to form her last Will.
75. The conclusion reached by the primary Judge was, on the proven primary facts, open.  The appeal should be dismissed.

Orders

76. I would order:

1. The appeal be dismissed.
2. The parties have leave to file written submissions as to costs within seven days.

Annexure