SUPREME COURT OF QUEENSLAND

PHILIPPIDES J: 

Background

[1] Anthony Leon Stephens, the testator, died on 30 April 2005 aged 58 years.  He was survived by his wife, Mrs Gail Susan Stephens, and the four children of their marriage, Tony, aged 27 years, Kathy, aged 24 years, Phillip aged 10 years and Henry aged 4 years.  He was also survived by his nephews, Christopher and Peter Stephens and his nieces Tania, Louise and Nicole.

[2] On 18 January 1988, the testator executed a will (“the 1988 will”).  There is no issue as to the valid execution of that instrument, which is exhibit 2.  At his death the testator also had in his possession an amalgam instrument comprising six stapled sheets.  The issue that arises is whether the 1988 will or the amalgam instrument (and if so what parts of it) is liable to be admitted to probate.  The applicants seek to have admitted to probate, pursuant to s 9 of the Succession Act 1981 (“the Act”), the 1988 will together with sheet two only of the amalgam instrument, notwithstanding that the formalities prescribed by the first paragraph of s 9 have not been complied with (relevantly the requirement for two witnesses).  Section 9 provides:

“Will to be in writing and signed before 2 witnesses

9. A will shall not be valid unless it is in writing and executed in manner hereinafter mentioned and required (that is to say) it shall be signed at the foot or end thereof by the testator or by some other person in the testator’s presence and by the testator’s direction and such signature shall be made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time and such witnesses shall attest and shall subscribe the will in the presence of the testator but no form of attestation shall be necessary provided that –

(a) the court may admit to probate a testamentary instrument executed in substantial compliance with the formalities prescribed by this section if the court is satisfied that the instrument expresses the testamentary intention of the testator; and

(b) the court may admit extrinsic evidence including evidence of statements made at any time by the testator as to the manner of execution of a testamentary instrument.”

[3] Phillip and Henry are represented by Mr Whitney as their litigation guardian.  Of those interested under either the 1988 will or amalgam instrument, only Peter and Christopher Stephens oppose a grant of probate in common form as contemplated in the application.  There is agreement amongst the parties, that it is convenient that the court, in addition to considering the issue of probate, also proceed to construe the instrument admitted to probate.

[4] The deceased’s estate is a very sizable one. It consists of assets which include interests in substantial marble and sandstone deposits.  The valuation of the marble resource is in the order of $15 million and the sandstone deposits is in the region of $4.5 million.  There are also a number of patents which have not been valued and an interest, through a corporate entity, in real estate which is valued at $7 million.

The 1988 Will

[5] By the 1988 will, the testator appointed as executors and trustees, his wife, his brother Keith Stephens and a friend and solicitor Arthur Carter.[1]

[6] The 1988 will provides for Mrs Stephens to receive “the land and dwelling house which consists of [the testator’s] principal place of residence at the time of [the testator’s] death” (cl 3).  The rest and residue of the estate, both real and personal, is gifted on trust to the trustees to sell (with power to postpone) and convert into money (cl 4).  Clause 5 provides for the residuary estate to be divided into portions of one-seventh, with cl 5(a) to cl 5(c) of the 1988 will providing for a two equal seventh part or share to pass to Mrs Stephens, and to Anthony and Katherine, provided each of those children attained the age of 21 years.  As to the remaining one-seventh part or share thereof, cl 5(d) directs the trustees to pay specific bequests of $50,000 to both Tanya and Nicole with the rest and residue together with the income thereof to be held upon trust for Peter on his attaining 25 years of age. (He is now aged 32 years.)  No provision is made for Christopher (now aged 34 years).

The amalgam instrument

[7] The amalgam instrument was compiled using a “cut and paste” method. As mentioned it comprises six sheets of paper writing, which were stapled together.  Three sheets (sheets one, three and six) consist of typewritten clauses apparently photocopied from the 1988 will, together with handwritten directions, interlineations, amendments and obliterations.  There are also three sheets, which the evidence demonstrates, are in the testator’s handwriting (sheets two, four and five). 

Sheet One

[8] The first sheet is a photocopy of part of page one of the 1988 will and has been cut after the first line of cl 5(a).  There also appears on that sheet undated marginal entries, which are signed by the testator, but not witnessed and obliterations.  The deceased’s signature appears on the bottom right hand corner of the page.

Sheet Three

[9] It appears that the remainder of the photocopied page one of the 1988 will, commencing with the second line of cl 5(a) forms sheet three of the amalgam.  The testator has added in his hand cl C(1) benefiting Phillip (in the sum of $1 million on his attaining 21 years).   At least some of that clause appears to have been created by the deceased in June 1996, after the birth of Phillip in 1995.  He has also inserted Henry’s name in the same clause providing for his wife.  None of the amendments on sheet three are witnessed. 

Sheet Six

[10] Sheet six consists of a photocopy of the last page of the 1988 will, containing in part the original cl 5(d) of the 1988 will to which the testator has inserted in his hand at the top of the page a clause making provision for Phillip (in the sum of $1 million), which he has signed and dated “18/1/97” but which is not witnessed.  An attempt has been made to cross out the introductory typed words of the first line of sub-clause 5(d).  Also in the testator’s writing is the notation “Louise S” which has been inserted between sub-clauses (ii) and (iii) which have been ticked.  There is no evidence as to when those annotations were made.  On the same sheet a new clause “(iv)” is inserted, referring to the nephew Christopher, which appears to be a photocopy of a handwritten interlineation by the testator. None of the alterations have been witnessed.

Sheet Two

[11] Inserted as the second sheet of the amalgam instrument is a page entirely in the testator’s hand bearing the date 1 July 2001 (“the 2001 amendments”) which has been signed by the testator and witnessed by Nigel Hugh Clapham.  It provides for an allocation of five-sixths of the residuary estate.  Clauses (A) to (E) provide for a one-sixth part or share to pass to the testator’s wife and to each of his four children upon their attaining 25 years.

Sheets Four and Five

[12] The fourth and fifth sheets, which are also entirely in the testator’s hand, are headed “Notes to my Will”.  Each sheet has been signed by the testator and witnessed by Mr Clapham, with the date 1 July 2001 appearing on the fifth sheet. 

Evidence

[13] The testator was diagnosed with a heart problem (cardiomyopathy) in the early 1990s.  Shortly after the birth of Henry in December 2000, he suffered further ill health and required hospitalisation.  The evidence of Mrs Stephens is that in early 2001 the deceased discussed with her that he had made a new will.  She was not shown it and did not ask to see it.  However, they discussed who the beneficiaries were and the choice of executors.  Mrs Stephens was told that the beneficiaries were the four children.  There was no mention of any of the testator’s nephews or nieces. 

[14] After the deceased’s death, Mrs Stephens found the amalgam instrument in a sealed ANZ Bank safety deposit envelope, which together with another envelope containing deeds, was in a briefcase belonging to the deceased.  The format of the instrument did not surprise her.  According to Mrs Stephens, her husband had an unconventional and idiosyncratic style of conducting business.  He commonly adopted a “cut and paste” approach in compiling documents used in business transactions and often took the approach that notes or amalgams of different pieces of paper adequately recorded business agreements.  Her evidence was that it was not his practice to sign draft documents.  She was able to identify the writing on the amalgam document as that of her husband and his signatures.

[15] The deceased’s solicitor, John Punch, who also gave affidavit and oral evidence confirmed that invariably the deceased, when meeting with him about legal and commercial matters, would bring instructions to him in draft note form.  Mr Punch stated that it was typical of the deceased to assert that he had made an agreement by reference to an informal document prepared by him, which he accepted as a formal binding arrangement. 

[16] Mr Clapham worked for the deceased at his property at Yatala.  He has explained the circumstances in which he witnessed the deceased’s signature on sheets two, four and five.  His evidence was that he was working late one night when the deceased called him to his office and told him that he had some papers to be signed which were his will.  He asked Mr Clapham to witness his signature, telling him to initial the papers witnessed and to add his full name.  Mr Clapham witnessed the deceased’s signing sheets two, four and five and then did as requested.  On each occasion the deceased covered the page in question so that Mr Clapham could not read what was on the page.  The date of 1 July 2001 was added by the deceased.  Mr Clapham was unable to recall on what actual day of the week the attestation occurred, but believed it was 1 July 2001.  There is no reason to doubt the date of 1 July 2001 as the date of the attestation.  Present at the time in an adjacent office was Mrs Stephens.  There is no evidence to suggest that the deceased knew of her presence in the adjacent office and she was not at the time aware of his presence, or the fact that the attestation was occurring.  She is unable to recall whether any staff were present in the office or its precincts at the time. 

[17] Both respondents filed affidavit material which seeks to challenge the view that the “cut and paste” approach adopted in the amalgam instrument was not an unusual one for the deceased.  They assert that the deceased was pedantic about legal matters, such as in the documentation for the patenting of his inventions.  The deceased’s brother, Michael Stephens, also provided an affidavit in a similar vein.  A number of objections are taken to that material, but in my view ultimately nothing turns on the content of those affidavits in respect of the issues of probate or construction.

Probate

[18] For the reasons stated below, I consider that the application for probate should succeed and that the 1988 will and sheet two only of the amalgam instrument should be admitted to probate.  I am satisfied that sheet two expresses the deceased’s testamentary capacity and that it was executed in substantial compliance with the formalities prescribed by the Act.  I reject the submission that the court ought not to admit that part only of the amalgam, because to do so is inconsistent with the testator’s testamentary intention. 

Sheets One, Three and Six

[19] I accept the applicant’s submission that the internal structure of the amalgam instrument points to the conclusion that the 1996 and 1997 provisions (cl C(1) and cl C(2)) inserted by the testator are not constituted as separate codicils to the will, nor liable to admission to probate on any other basis.  Those handwritten additions on sheets three and six are, in terms of location, sequence and substance, inconsistent with the dispositive intent apparent from the 2001 amendments on sheet two.  It may be concluded that they are superseded and revoked by necessary implication by the 2001 amendments.  At the least, there can be no confidence, given the execution and attestation of the 2001 additions, that cl C(1) and cl C(2) continued to represent the testator’s testamentary intentions.  Furthermore, the absence of any attestation in respect of those clauses means that there can be no prospect of substantial compliance with s 9 of the Act.  

[20] In respect of the marginal entries on sheet one which appear beside cl 2, cl 3 and cl 4, they have also not been witnessed and cannot be considered to be in substantial compliance with the requirements as to form in s 9.  The insertions relating to “Louise S” and the nephew Christopher Stephens on sheet six were neither signed nor witnessed.  They cannot be admitted to probate. 

[21] Nor are the attempted obliterations effective. An alteration, including an obliteration, is to be disregarded if the words or effect of the will before the alteration was made are apparent: s 12. “Apparent” means legible to visual examination such as by holding the document up to the light or by applying a magnifying glass.[2]  The attempted obliterations are apparent and may be ascertained from the 1988 will.  But in any event, I accept the applicant’s submissions that the obliterated writing does not constitute such an important feature of the overall architecture of the instrument to affect the status of the remainder.[3]   

Sheet Two

[22] Counsel for the respondents placed emphasis on the South Australian decision of In the Estate of Ashley David Schwartzkopff,[4] in submitting that the court could not be satisfied that the amalgam instrument represented the deceased’s testamentary intention and further that, if there was an expression of testamentary intention, it could not be isolated to sheet two only.  I am unable to find Schwartzkopff of assistance in the present case, given the very different circumstances of that case.

[23] As mentioned, I am satisfied that the 2001 additions, witnessed by Mr Clapham express the testamentary intention of the deceased.  Although Mr Clapham did not read sheet two and is unable to swear that at the time that the deceased signed the sheet and he witnessed it, it contained all of the writing now appearing on it, that is a reasonable inference.  An examination of sheet two reveals that the handwriting is all in the same ink and there is no doubt that it is entirely the handwriting of the testator.  I am prepared to conclude on the balance of probabilities that all of the clauses as they currently appear were present on sheet two at the time of its execution.  It is improbable that the deceased would otherwise have gone to the effort of inviting Mr Clapham to witness his signature. 

[24] I do not accept the proposition that sheet two should be seen as a working draft to be finalised at some later stage.  Mrs Stephens was firm in her evidence that the testator did not sign “drafts” and that he would not have signed a document if he intended it only as a working draft.  The deceased took the deliberate action of requiring Mr Clapham to witness his signature.  And the evidence from Mr Clapham is entirely inconsistent with the view that the sheet witnessed was only a draft.  Mr Clapham’s uncontested evidence is that the deceased made clear to him that the document he was signing and asking Mr Clapham to witness was intended as his will.  Furthermore, sheet two bears the hallmarks of testamentary intent; the phraseology employed is plainly dispositive in nature.  The provisions therein are not in any way unusual or exceptional.  Rather, they reflect the changes that had occurred in the deceased’s family with the birth of two additional children after the 1988 will was made.  There are therefore clear and sensible reasons why a reasonable man would make the amendments to the 1988 will in accordance with the contents of sheet two.  Leaving aside the objections to the affidavits relied upon by the respondents, there is nothing in those affidavits which persuades me against the view that sheet two expresses the deceased’s testamentary intention. 

[25] The difficulty that arises, however, is that sheet two fails to comply with the formal requirements of s 9 requiring two attesting witnesses and thus it cannot be admitted to probate unless there is substantial compliance with that requirement. 

[26] While the substantial compliance proviso is neither a rule of maximum nor minimum formalities, it is not a rule of no formalities.[5]  Nevertheless, it is important to bear in mind that s 9 is a beneficial provision designed to enable a departure from the previously rigid attitudes that had been developed by the courts, in an exercise of excessive formality.[6]  Its purpose, as Atkinson J observed in Public Trustee of Queensland v Attorney General of Queensland,[7] is thus to provide a means “to relieve from the unbending requirements of formal execution” in respect of a document which represents the testamentary intention of the testator, so that it can be admitted to probate notwithstanding a failure to strictly comply with the formal requirements referred to in s 9.

[27] It has been observed that, while there is no presumption that any one formality is of greater importance than another, the need for execution by the testator and the witnesses is a weighty formality.[8]  However, notwithstanding the liberal approach appropriate in applying the “substantial compliance” proviso emphasised in decisions such as Re Johnston,[9] the earliest Queensland cases decided under s 9 adopted a strict view of the need to comply with the formal witnessing provisions and regarded witnessing by one signatory as such a basic defect that there could be no question of substantial compliance.[10]  Those decisions were reviewed by Williams J in Re the Will of Eagles,[11] who endorsed the liberal approach to the application of the proviso, although his Honour cautioned against a view that, in all cases where the relevant document expressed a testamentary intention, but had been attested by only one witness, there would be substantial compliance.[12]  His Honour also observed that, where the party seeking probate of a document is relying on there being substantial compliance with the statutory requirements, there is an onus on that person to establish with some degree of precision what had happened and when.[13]

[28] In Re Nicholls[14] Williams J emphasised that of vital importance in determining whether there has been substantial compliance are the particular facts of the case in question.  It is not thus instructive to match cases which are not identical; the test is not one of substantial similarity with other cases, rather than substantial compliance with the formalities of s 9.[15]  It is a question of degree to be decided on the facts of the particular case whether there has been substantial compliance.[16]

[29] In Re Cashin Demack J identified as an important consideration that “the Court is satisfied that the instrument expresses the testamentary intention of a testator”.[17]  Williams J also acknowledged the importance of that consideration in Re Nicholls[18]  and in Re Goward[19] his Honour referred to “the more recent trend … to place greater emphasis on the question whether the document expresses the testamentary intention of the deceased”.   This trend has continued with decisions of this court reflecting a strong indorsement of the liberal approach to the s 9 proviso and the importance of the consideration of testamentary intention.[20]

[30] On behalf of the applicants it was submitted that, where the issue of testamentary intention is satisfied, it will be appropriate in addressing the question of substantial compliance to adopt a purposive analysis, while bearing in mind always the particular facts of each case.  In this regard, reference was made to Professor Langbein’s observation that “attestation makes a more modest contribution, primarily of a protective character”, to the formalities policy than that concerning the testator’s signature.[21] 

[31] In the particular circumstances of this case, the protective formalities as to attestation do not preclude admission to probate of sheet two, there being  substantial compliance with the attestation requirement.  Of relevance in reaching that conclusion is the finding I have made concerning testamentary intention.  I also consider relevant that, although the amalgam instrument is an unusual one, there is nothing on the facts of this case to excite suspicion as to compilation or content.  The sheet two additions give expression to the testator’s understandable intention to provide for the two children born after the 1988 will was made.  The attesting witness, Mr Clapham, does not claim any interest in the estate.  In addition, there is in the present case uncontested evidence of the circumstances of the attestation from Mr Clapham which I accept.  The evidence indicates that, when inviting Mr Clapham to witness his signature, the deceased had in mind a solemn occasion and a transaction of formality.  Although sheet two was covered over when Mr Clapham witnessed the deceased’s signature, as the applicants’ counsel submitted, this was not a case where an individual was invited to participate in a transaction, the purpose of which was not revealed. 

[32] It is clear the testator must have been aware from the 1988 will transaction that resort was had to two witnesses on that occasion and it may be assumed he was aware that there was a requirement that his signature be witnessed, but there is no evidence that he was ever told or aware that two witnesses were a requirement for formal validity.  While it is possible that an explanation as to why the deceased did not seek out his wife to witness his signature as a second witness was that he was aware that a gift to an attesting witness is void, I note that there is no evidence to suggest such knowledge.  However, the evidence does suggest that the deceased and his wife acted independently of each other when it came to the matter of the content and execution of their wills.

[33] In my view, notwithstanding the deficiency in the attestation of sheet two the proviso in s 9 as to substantial compliance is satisfied.  For the reasons stated below I consider that sheet two ought to be admitted as a codicil to the 1988 will. 

Sheets Four and Five

[34] In contrast with the language used in sheet two, that used by the testator in the fourth and fifth sheets is not such as to indicate that an imperative obligation is imposed.  As is suggested by the heading “Notes to my Will”, the sheets contain advice or suggestions for the benefit of the executors expressed in precatory language.   While on the reading of a will as a whole, such language may in some circumstances be construed as imposing a trust,[22] in the present case, I am unable to discern from the language used that any trust obligation was intended.  Rather, mention is made in sheet five to “people to be looked after” and contributions that “can” be paid “if and when” certain property is sold.  I therefore accept the submissions that, when read as a whole, the “notes” are not effective as a testamentary disposition.  Sheets four and five cannot therefore be admitted to probate.

Conclusion

[35] The 1988 will together with sheet two only of the amalgam should be admitted to probate, the latter substantially complying with the formalities required by s 9 of the Act. 

Construction

[36] The further issue to be addressed is the effect, on the operation of the 1988 will, of admission to probate of the 2001 amendments.  It is apparent that sheet two operates as a codicil to the 1988 will and was intended to supplement rather than replace the 1988 will.  However, I am satisfied that sheet two, properly construed, has the effect of revoking cl 5(a), cl 5(b) and cl 5(c) of the 1988 will, notwithstanding that it contains no express revocation clause.  This is because sheet two is a later instrument, making dispositions to the testator’s widow, Anthony and Katherine which are clearly inconsistent with gifts to those persons as contemplated in the 1988 will.[23]  This conclusion is strengthened by the evident “cutting through” of the photocopy of the 1988 will at the first line of cl 5 on the first sheet of the amalgam and the insertion of sheet two immediately thereafter.

[37] A further question is whether cl 5(d) of the 1988 will is similarly revoked.  The possibilities open to argument as to construction are expressed in the application before the court to be as follows:

“(a)whether the testator intended by the 2001 amendments:

(i) by deleting altogether clause 5(d) of the photocopy of the 1988 will to distribute only five sixths of his residuary estate with the remaining one sixth to be dealt with pursuant to the operation of the intestacy rules promulgated under the Succession Act 1981;

(ii) alternatively, to distribute the remaining one sixth share of his residuary estate to each of his nieces and nephews named therein; or

(b) alternatively, there having been a failure of one fractional part of the disposition of the residuary estate of the testator, by operation of
[s 29(1)(b) of the Act], that part shall pass to that part of the disposition which does not fail;

(c) alternatively, as the testator did still intend to make the gifts as constituted by clauses 5(d)(i), (ii) and (iii) of the 1988 will, the will as probated be rectified by insertion of the phrase “… as to the remaining one sixth part or share thereof”.

[38] By the 1988 will the deceased had fully disposed of his residuary estate in fractions of one-seventh. By the 2001 amendments contained on sheet two the deceased reallocated his estate, disposing of five-sixths in a manner which ensured that his wife and all of his children were provided for.  But the 2001 amendments make no allocation of a final one-sixth share.  Both cl 5(d) of the 1988 will and sub-clause (i) of the sixth sheet of the amalgam instrument are expressed in terms of a one-seventh share.

[39] The answer to the construction question raised in the application is not to be found by concluding that the deceased intended to distribute a one-sixth share to the nieces and nephews named on the sixth sheet of the amalgam.  The deceased did not take the opportunity to have the alterations and insertions contained on that sheet witnessed in July 2001 and there can be no satisfaction of a testamentary intention to make the gifts specified on that sheet at all, let alone in respect of a one-sixth share.  Furthermore, such an approach would require the court in effect to re-write the deceased’s will.  And the alterations contained on that sheet cannot be admitted to probate for the reasons already mentioned.   

[40] The 2001 amendments on sheet two of the amalgam instrument properly construed do not result in a revocation of gifts in cl 5(d) of the 1988 will.  Given the clear gifts in cl 5(d) of the 1988 will, an at least equally clear and unambiguous expression of an intention to revoke those gifts would be required.[24] There is nothing to suggest that the deceased’s clear testamentary intention to benefit the nieces and nephews referred to in the 1988 will had altered.  There is no evidence to suggest that their relationship with the deceased had in any way deteriorated and the deceased refrained from striking out cl 5(d) altogether.  The deceased’s assets were of such magnitude that he was financially able to make provision for his wife and all his children, whilst also making gifts to the specified nephews and nieces in cl 5(d) if he wished to.

[41] Nevertheless, there remains a portion of the estate that is unallocated, namely the difference between the five-sixths allocated by the terms of the codicil and the one-seventh allocated by cl 5(b) of the 1988 will; that is as to a one forty-second share.  A submission was made that one possibility was that the deceased still intended to make the gifts provided for in cl 5(d) of the 1988 will, but in respect of a one-sixth share instead of a one-seventh share, so that the probated will ought to be rectified accordingly. However, rectification is only permitted on proof by the clearest evidence that the testator did not intend to use the words appearing in the will.[25]  The evidence as to intention falls short of that required for rectification and rectification cannot be justified simply as a means of avoiding an intestacy as to a one forty-second share which remains unallocated.

[42] An argument was raised on behalf of counsel for the applicants, and supported by counsel for the litigation guardian, that resort could be had to s 29(1)(b) of the Act as a means of obviating intestacy as to the unallocated portion of the residuary estate.  That section provides that:

“if a disposition in fractional parts fails as to any of such parts for any reason that part shall pass as to that part of the disposition which does not fail and if there is more than 1 part which does not fail to all those parts proportionately”.

[43] “Disposition” means “a disposition of all property or a residuary disposition”: s 29(2).  Those urging the application of s 29(1)(b) conceded the obstacle presented by the decision in Re Olive.[26]  In that case the testatrix had disposed of her residuary estate in portions of two-fifteenths, three-fifths and one-fifteenth, leaving a one-fifth portion unallocated.  Denmack J held that there was no basis for applying the rule against intestacy and that, while s 29(b) of the Act (as it was then numbered) was a beneficial provision, it had no application where the residuary fund that had been disposed of in fractional parts was only part of the residuary fund.[27]  His Honour thus made a distinction between the failure to dispose of a fractional part at all and the disposition in fractional parts in circumstances where there was a failure of one or more parts for some reason.  I respectfully adopt the reasoning in Re Olive. Section 29(1)(b) does not provide a solution in the present case in respect of the failure to allocate entirely the residuary estate. 

Orders

[44] I order that:

1. The Will of Anthony Leon Stephens executed on 18 January 1988, together with sheet two of the document 12, filed 20 July 2006, being the paper writing dated 1 July 2001 (“the 2001 amendments”), be admitted to probate, subject to the formal requirements of the registrar.

2. The 2001 amendments constitute a codicil to the 1988 will and on proper construction of the will and codicil:

(a) have the effect of revoking cls 5(a), (b) and (c) of the 1988 will;

(b) do not have the effect of revoking cl 5(d) of the 1988 will.

3.As to the one forty-second part of the residuary estate which is unallocated under the will there is an intestacy.