Re Barker[2005] QSC 125

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

MULLINS J

No BS4741 of 2005

IN THE WILL OF JOHANNES ALEXANDER BARKER ALSO KNOWN AS JOHN BARKER

BRISBANE

DATE 14/09/2005

JUDGMENT

HER HONOUR: The applicant, Mr John Eric Bakker, applies for a grant of probate of the will made by his late father, Mr Johannes Alexander Bakker (“the deceased”) on 13 April 2004 to which I will refer as “the will”.

The applicant filed an application for the grant on 10 June 2005 with the requisite supporting affidavits. The application was requisitioned by the Deputy Registrar on the basis that the will had been witnessed by only one person. The Deputy Registrar informed the applicant of the need to obtain an order that the will substantially complies with section 9 of the Succession Act 1981 before a grant could be made.

The applicant filed an application for the necessary orders on 13 July 2005 together with his supporting affidavit and that of the witness to the will, Ms Diane Johnston. The matter came on before me in the applications jurisdiction on 2 August 2005. As the applicant was unrepresented, I reserved my decision. On perusing the material, I decided that I required more information from the witness. My Associate conveyed that request to the applicant, who obtained a further affidavit from Ms Johnston that was filed on 6 September 2005.

The plaintiff died on 16 November 2004, aged 73 years. Although typewritten, in form and content, the will appears to have been home-made. It certainly was not made with the assistance of a lawyer. The applicant is the second-eldest of eight children of the deceased, ranging between 46 years and six years in age. The deceased had been married twice and divorced and had a relationship with a third woman. It appears that the oldest six children come from the deceased's first marriage, the second-youngest child from his second marriage and the youngest child from the third relationship. Each of the eight children receive some benefit under the will.

On 13 April 2004, the deceased attended at the office of an Ipswich City councillor that was near his residence. Ms Johnston is a Justice of the Peace who works for the Councillor. She did not know the deceased and he had not made a prior appointment. Her normal practice is to require identification prior to witnessing the signing of any document.

Ms Johnston swears to the deceased signing the will in her presence and that she then signed the will in his presence. Ms Johnston explains that the Councillor's office is extremely busy and that she overlooked the need for ensuring that a second witness was involved in attesting the signing of the will by the deceased.

The applicant deposes to the will being handed to him by the deceased in May 2004 while they were seated in the kitchen of the deceased's home. The applicant states that his father affirmed in the applicant's presence that this was his last will and testament and they discussed the conditions he had stated in the will in some detail. The applicant had no concerns about his father's mental capacity at that time. The applicant was out with the deceased on the Queen's birthday weekend that followed and the applicant raised with the deceased about the fact that there was only one signature on the will. He recalls that the deceased stated that he was certain that one Justice of the Peace's signature was superior to two normal witnesses. The applicant did not pursue the issue further.

The deceased was obviously unaware of the need for two signatures in relation to the witnessing of the execution of a will. Although there may be the suggestion in some authorities that there can never be substantial compliance if only one person signs a will as a witness, the prevailing view is that it is a question of degree as to whether there has been substantial compliance, and that exceptional circumstances may exist where one witness will suffice. See re: Nicholls [1996] 1 QdR 179 at 181 and Public Trustee (Queensland) v. Attorney-General (Queensland) [2004] QSC 328 at paragraphs 13 to 15.

On the face, the will was intended by the deceased as a testamentary disposition and this was affirmed by the exchange between the deceased and the applicant when the deceased handed the will to the applicant. The witnessing of the deceased's execution of the will by Ms Johnston was proper, except for the lack of a second witness for the same purpose. In the circumstances of this case, I find that the will was executed in substantial compliance with the formalities.

I therefore make the following orders: