Re Vogele[2007] QSC 404

SUPREME COURT OF QUEENSLAND

1. Douglas J:  Noel Roy Vogele died on 19 January 2007 survived by four children and a widow from whom he was estranged.  His estate is valued at $162,237.70.  His youngest child, the applicant, Amanda Lee Vogele, was named as his personal representative in a document of which she seeks a grant of probate pursuant to s. 18 of the Succession Act 1981.  His widow, Patricia Daisy Vogele, opposes the application. 

2. The document was not executed at all, let alone in the manner required by s. 10 of the Act but s. 18, introduced into the Act in 2006, allows the Court to dispense with the execution requirements for a will if “satisfied that the person intended the document … to form the person’s will”. In making a decision under s. 18(2) the Court may have regard to any evidence relating to the way in which the document was executed and any evidence of the person’s testamentary intentions, including evidence of statements made by the person.

Background

3. The document for which probate is sought is contained in a form from a booklet called the National Will Kit, prepared by the publisher as a guide to assisting people to prepare a simple will. It included an instruction to sign the original document “at the foot or end thereof with your usual signature, exactly as you wrote it at the beginning of the Will Form”. The instruction goes on to say:

“You must sign it in the presence of two people who must not be beneficiaries named in your Will and who, preferably, should also not be spouses of beneficiaries.  The witnesses must be present at the same time and should sign the Will where marked.”

4. A previous 1974 will of Mr Vogele appears to have been properly executed by him in the presence of two witnesses described on that document as solicitors. It was submitted that I could infer from these facts that Mr Vogele knew that he had to sign the document and have his signature witnessed by two people for it to have legal effect as his will.

5. The form had blanks in it designed to be completed by the testator. Under the heading “Last Will and Testament” there is inserted the name Noel Roy Vogele and then, at the commencement of the document the following, with the insertions italicised:

“I, Noel Roy Vogele, of 4 Andersen St. (address), City of Apple Tree Creek, State/Territory of Queensland, being of sound mind, make this my Last Will and revoke all prior Wills and codicils.”

6. Clause 2 appointed Amanda Lee Vogele as his personal representative and also provided that if she did not act in that capacity for any reason then Taddern Roy Vogele was appointed in her stead as an alternate personal representative. Taddern Vogele is Amanda Vogele’s son. Clauses 3 and 4, dealing with the possible appointment of a guardian or trustee, were struck out and there were some other lines drawn through a part of the document called “Check list for Personal Representative”.

7. Clauses 5, 6 and 7 read as follows:

“5.  General Gifts: I give all my personal and household effects as follows:

To Amanda Lee Vogele to dispose of as she sees fair, to my Granddaughters and Grandson.

her address being 35. Chapman Ave {Warilla NSW Mt Warrigal}

6. Specific Gifts: I give the following specific gifts:

My Mercedes 180 Car and 206 Mercedes Camper Van My House at No 9. Exhibition St, Degilbo 4621

1 Ride on Mower MTD. Compressor, Welder + Tools.

I leave to Amanda Lee Vogele to distribute at her own discretion or to sell for Cash.

7. Residuary Estate: I give my entire residuary estate as follows:

solely to Amanda Lee Vogele

although if Amanda Lee Vogele

shall predecease me, to Taddern Roy Vogele.

35 Chapman Av. Mt Warigal NSW.”

8. On page 17 of the document, headed “Your Personal History” Mr Vogele had also inserted his name, his city as Temora in New South Wales, his birth date of 7 October 1936 and his place of birth as Temora. The evidence otherwise establishes that he was born and died in Temora, that he owned and lived in a house at 9 Exhibition St, Degilbo in Queensland from 14 May 2004 until he died and at Apple Tree Creek from about 1983 until 14 May 2004. He died at Temora shortly after a visit to his daughter Amanda Vogele where she lives in New South Wales. On New Year’s Day 2007 he left her house and drove to Temora to visit relatives, had a stroke approximately two days later in Temora, was admitted into the local hospital there and remained there until his death.

9. Patricia Vogele also swore that, when she visited the deceased on his death bed at Temora Hospital on 13 January 2007, Amanda Vogele quickly closed a green plastic folder and put it into her bag. When she kissed the deceased shortly afterwards he whispered to her that Amanda was “taxing his brain” and later described the documents in the folder as “bloody paperwork.” Amanda Vogele swore that the documents were his aged care assessment paperwork and was not challenged on that issue.

10. There is no issue that the writing was that of the deceased. Two inks of different colours appear on the document. The first ink was used to write the name Noel Roy Vogele at the head of the document and to complete the insertions in the first paragraph, presumably before he left Apple Tree Creek on 14 May 2004. The insertions in cll. 2, 5, 6 and 7 and the lines deleting cll. 3 and 4 and entries on p. 17 of the booklet were in the second ink which was also used by the deceased to write on an earlier 1974 will, asserting it was void because a new will had been made. The opinion of the document examiner, Mr Marheine, is that the similarities in the second ink may suggest that the writings using that ink on the form and the 1974 will were done at the same time. That 1974 will had, in any event, been revoked by Mr Vogele’s subsequent marriage.

11. There is no evidence of when the document was written by the deceased, nor that any other person was present when it was written. Parts of it may have been written at different times because of the two different inks used. It was found on top of his dressing table at his house in Degilbo after his death by Amanda Vogele. She and Patricia had gone there together to look for a will as his solicitor at Childers did not have any will in his files.

12. Some evidence of his testamentary intentions was provided in affidavits deposing to oral statements made by Mr Vogele before he died. A Dr Patel, who treated him for two and a half years, probably during the period leading up to his death, swore that Mr Vogele made him aware of his “intentions that his daughter would be moving into his house with her children to look after him.” He also said that Mr Vogele never spoke to him of any other children. That evidence does not address directly the issue of Mr Vogele’s testamentary intentions.

13. He told a couple called William and Olwen Jenkins during the twelve months or so leading up to his death, however, that he intended to leave his estate to Amanda Vogele.

14. Mr Hartley Gates also swore that Mr Vogele told him in November 2006 “that he would be leaving his property, his car and all of his possessions to his daughter Amanda Lee Vogele”. Colleen and Malcolm Howe’s evidence was that in late December 2006 Mr Vogele told them that, after his death, his house would become Amanda’s and that he had told them on several occasions that he intended leaving his house to her. There was no evidence from Amanda Vogele of any similar statements by her father to her.

Discussion

15. The utility of the extrinsic evidence of Mr Vogele’s testamentary intentions was criticised by Mr Ryan for Mrs Vogele because it could not be related to the time of creation of the form for which probate is sought and because some of the oral statements contradict each other and are inconsistent with the contents of the form which is expressed so as to leave his personal and household effects not to Amanda Vogele but to his grandchildren. Some specific chattels, the house and the residuary estate were said to be left to Amanda Vogele but there is no precise correlation between any of the statements made to the witnesses and clauses 5, 6 and 7 of the form.

16. He submitted that the applicant cannot exclude the proposition that what was written in the form was a draft and that, given the statements made by Mr Vogele to the witnesses and the differences between those statements and the contents of the form, he had not yet finalized in his own mind his true testamentary intentions, something also consistent with the evidence that the form may have been added to on two separate occasions.

17. There was a hint of an argument that undue influence had been exercised on the deceased because of the episode with the green folder in the Temora Hospital but that could not be pursued on the state of the evidence, which I accept, that the documents Amanda Vogele was discussing with the deceased dealt with his aged care assessment.

18. Mr Murphy SC for the applicant relied on two decisions of the New South Wales Court of Appeal in respect of the comparable legislation in that State, s. 18A of the Wills, Probate and Administration Act 1898 (NSW).  They are also referred to by Philippides J in her discussion of the change in approach under this legislation in Re Garris [2007] QSC 181 at [5]-[10].

19. In Hatsatouris v Hatsatouris [2001] NSWCA 408 Powell JA at [56] said:

“[56] 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:

(a) was there a document,

(b) did that document purport to embody the testamentary intentions of the relevant Deceased?

(c) 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?”

20. On that test there is no evidence, apart from the completion of some of the blanks, that the deceased by some act or words demonstrated that it was his intention that the form should without more operate as his will. The inconsistency of his statements to the witnesses about his testamentary intentions, the inconsistency between some of those statements and the contents of the form and the uncertainty as to the date or dates when the form was partially completed, as well as Mr Vogele’s failure to sign the document in circumstances where I should infer he knew that it had to be signed and witnessed, all argue against the approach that probate should be granted.

21. Another general statement, made by Mahoney JA in dissent in Re Masters (deceased); Hill v Plummer (1994) 33 NSWLR 446, 462 and relied on by Mr Murphy, was to this effect:

“Secondly, s 18A should, as I have indicated, be given a beneficialapplication. There are, in the history of this branch of the law, many cases in which the intention of the deceased has not been able to be given effect. That is an evil which should be remedied as far as may be. It may be understood why the legislature decided not to give testamentary effect merely to any statement of testamentary wishes, however casually stated and even if it was not contemplated that legal results would follow. The consequences of that, as far as concerns proof and otherwise, can well be imagined. But the benefits of the change should not be withheld by requiring too rigid a manner of proof that what was put in a document should have legal effect. If a document is on its face such as contemplates legal effect, ordinarily it should be given effect unless — as in this case — there are contexts or circumstances that lead to the contrary conclusion.”

22. Although this document does on its face suggest the possibility that it would have legal effect^[1], the context and other circumstances such as the inconsistency of it with some of the deceased’s own statements and the lack of any signature discourage me from making a grant of probate in respect of it. 

23. The situation is rather stronger against the applicant than in Estate of Hines v Hines [1999] WASC 111, a decision relied on by the respondent.  There, Owen J refused a grant of probate where a will form was unsigned even though there was evidence that a will had been completed in the form the deceased said that he wanted it to take except for his signature before witnesses.  There was a subsequent delay in completion of the will and his Honour was not satisfied that the document continued to represent the deceased’s intentions because he spoke later of going to see a solicitor to make sure that the will was prepared properly and then, on his death bed, told his de facto wife that she should have brought the document he had prepared with her “so that the will could be finished.”

Order

24. As in Estate of Hines v Hines the applicant has failed to persuade me on the balance of probabilities, taking into account the serious consequences of the determination of this issue on the rights of the interested parties, that Mr Vogele intended this particular document to take effect as his will.  The application should be dismissed.