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Hensler v Padget[2008] QSC 82







Trial Division





2 May 2008




7 April 2008


Martin J


1. That the revised Will document forwarded to the deceased on 11 December 2003 be admitted to Probate.

2. That the applicant’s costs of and incidental to the application assessed on an indemnity basis be paid out of the estate of the deceased.

3. That the intervener’s costs of and incidental to the application assessed on an indemnity basis be paid out of the estate.


SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – TESTAMENTARY CAPACITY- where testamentary capacity apparent at all relevant times - where deceased subsequently diagnosed with gradual onset dementia.

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – GENERALLY – where deceased gave signed instructions for execution of  new Will – where draft Will prepared but not formally executed - whether the Will document signed by the deceased embodies the deceased’s testamentary intention.

Succession Act 1981, s 10

Uniform Civil Procedure Rules, r 288

In the Estate of Radziszewski (1982) 29 SASR 256

McGrath v de Plater [2004] QSC 21 at [13].

Re Garris [2007] QSC 181

Re Male [1934] VLR 318

Worth v Clasohm (1952) 86 CLR 439


P D Tucker for the plaintiff

T  W Quinn for the Intervenor Orielle Jean Foelz


Hogan and Company Lawyers for the plaintiff

De Groots Wills & Estate Lawyers for the Intervenor Orielle Jeann Foelz


[1] The applicant seeks judgment under r 288 of the Uniform Civil Procedure Rules.

[2] The applicant is the executor of the estate of the late Bryan George William Gibson. In August 2000 the deceased executed a Will which had been prepared, on his instructions, by his solicitor, the applicant.

[3] In February 2003 he again consulted the applicant and gave her some instructions in relation to the preparation of a new Will. Those instructions were both oral and in writing and the deceased signed (or initialled) his written instructions and the notes taken by the applicant of his oral instructions.

[4] After a number of revisions a draft revised Will was sent to him in December 2003. In April 2004 the deceased lost testamentary capacity by which time he had not executed the revised Will. He died in August 2007.

[5] The applicant seeks, among other things:

(a) A declaration that either the unexecuted December 2003 Will or the signed notes of the meeting between the applicant and the deceased that took place in February 2003 records the true testamentary intention of the deceased, and

(b) An order that either the unexecuted Will of December 2003 or the Will of August 2003 together with the signed notes (as a codicil) be admitted to Probate.


[6] The deceased had been a client of the applicant’s from the year 2000. As is noted above, in August of that year she prepared a Will which was duly executed (“the August 2000 Will”).

[7] Under that Will the deceased:

(a) Appointed the applicant and the first defendant (the deceased’s sister) as his trustees and executors;

(b) Gave his piano to the first defendant;

(c) Gave his motor vehicle and other items of personalty to the second defendant;

(d) Bequeathed:

(i) $200,000 to O J Davidson;

(ii) $100,000 to the second defendant;

(iii) $200,000 to the third defendant;

(iv) $50,000 to T Lowe;

(v) $20,000 to V Stanton; and

(e) Gave the rest of his estate absolutely to the first defendant.

[8] In January 2003 the deceased contacted the applicant and told her that he wanted to review his August 2000 Will. About a month later the deceased delivered to the applicant’s office five pages of handwritten notes that he had prepared in relation to a conference that he was to have with the applicant later that month.

[9] On 27 February 2007 the applicant met with the deceased to take his instructions in relation to a revised Will. That meeting lasted 1.75 hours, in the course of which the deceased discussed with the applicant his property and other assets, and to whom he wished his property and assets to be left in his Will.

[10] Towards the end of that meeting the applicant read back to the deceased the notes she had taken of his instructions. He told her that they were correct, and asked the applicant to prepare a revised Will in accordance with those instructions.

[11] The deceased then said to the applicant that he was concerned that if something were to happen to him before a formal Will was signed that he wanted to ensure that the third defendant, in particular, was looked after in accordance with his instructions. In response, the applicant suggested that the deceased sign the notes that he had provided and the instructions that she had recorded and read to the deceased. The deceased agreed to that, and shortly afterwards, the applicant’s secretary joined them in the applicant’s office. The deceased then initialled all pages of the deceased’s notes that he had supplied on 14 February 2003, except for signing in full on the last page. The applicant and her secretary then witnessed this by initialling all pages of the deceased’s notes, except for signing in full on the last page. The deceased then initialled each page of the applicant’s handwritten notes of his instructions and, again, the applicant and her secretary initialled those notes to witness that the deceased’s had initialled those pages. This all occurred while each of them were in the applicant’s office.

[12] The Will which was to be drafted in accordance with the deceased’s instructions made the following gifts and bequests:

(a) Gave his piano and other items of personalty to the second defendant;

(b) Gave his motor vehicle and some items of personalty to the second defendant;

(c) Gave his house at 41 Holmes Street, Toowong to O J Foelz;

(d) Gave certain other real property at “Points North” to the first defendant;

(e) Gave a debenture and savings having a value of approximately $15,000 and some particular electrical goods to the third defendant;

(f) Directed that $300,000 be held on trust for the purpose of acquiring a dwelling in which the third defendant would be entitled to reside for life;

(g) Bequeathed:

(i) $50,000 to the first defendant;

(ii) $50,000 to T Lowe;

(iii) $100,000 to O J Foelz;

(iv) $100,000 to the second defendant;

(v) $50,000 to A Padget;

(vi) $50,000 to Vanessa Stanton; and

(h) Gave the residue of his estate to the first defendant.

[13] In early March 2003 the applicant posted to the deceased a draft of his new Will prepared in accordance with the instructions received at the meeting on 27 February.  The draft was amended subsequently in accordance with later instructions received from the deceased.

[14] In April and May 2003 the applicant wrote to the deceased requesting his instructions in relation to the revised Will.

[15] On 10 June 2003 the deceased visited the applicant’s office and handed to her six further pages of notes, four of which were in the deceased’s handwriting and two of which comprised the deceased’s handwritten amendments to the summary of the deceased’s major assets (previously supplied to him by the applicant) and summary of gifts made under the revised Will that had been forwarded to him by the applicant in March 2003.

[16] The applicant and the deceased had a conversation about the manner in which he was dealing with his property and other assets and certain matters were raised about the effect of his instructions.

[17] On 21 July 2003 the applicant wrote to the deceased and advised in respect of the matters that he had raised with her in June 2003. In August 2003 the deceased telephoned the applicant with instructions in relation to amendments to be made to the revised Will that she had sent to him in March 2003. Those instructions concerned amendments in relation to the third defendant’s entitlements under the revised Will.

[18] On 2 September 2003 the applicant posted to the deceased a further version of the revised Will and included all amendments in accordance with the deceased’s instructions. On 30 September 2003 a solicitor working at the applicant’s firm received a telephone call from the deceased in respect of further instructions concerning amendments to his revised Will. Those instructions concerned the third defendant’s entitlement under the revised Will.

[19] On 11 December 2003 the applicant posted to the deceased a copy of his revised Will which included all amendments up to and including those that the deceased had provided on 30 September 2003.

[20] On or about 18 December 2003 the applicant spoke by telephone with the deceased. In that conversation the deceased said that he was considering purchasing a unit at Tweed Heads and discussion ensued about stamp duty and other related matters.

[21] On 28 January 2004 the applicant wrote to the deceased requesting any further instructions. In the absence of a reply the applicant again wrote on 17 March 2004 in similar terms. No further instructions were received from the deceased.

Testamentary capacity of the deceased

[22] Where an applicant seeks to propound a Will for probate the burden of establishing that probate should be granted is imposed upon that applicant. If there is a doubt as to the existence of testamentary capacity at the relevant time then applicant must satisfy the court that the deceased retained his or her mental powers to the requisite extent.[1]

[23] The various requirements were summarised by Atkinson J in McGrath v de Plater[2] where her Honour said:

“In order to show testamentary capacity, the applicant must show that at the time [the deceased] executed the … will, she knew what she was doing and the effect of her dispositions. The testator must know what estate she had to dispose of and what persons might have a claim on her. The burden of proof lies on the propounder of the instrument to show that she had testamentary capacity. Before being admitted to probate, it must be shown that the will was the last will of a free and capable testator.[3]

[24] The only material which touches upon the deceased’s capacity in any adverse way is a letter from the deceased’s then general practitioner (dated 5 August 2004) in which he expressed the opinion that the deceased had been suffering a gradual onset of dementia in the two years preceding 5 August 2004. That is the only material which casts any doubt at all on the capacity of the deceased. I am satisfied that all appropriate attempts were made to obtain further information from the general practitioner but it was not available.

[25] The applicant is an experienced solicitor and, in particular, she has extensive experience of dealing with persons who wish to make wills.

[26] The evidence of the applicant is compelling so far as it relates to the testamentary capacity of the deceased. She relates the circumstances of the conversations she had with the deceased and I accept that he did at all times appear to her to be in possession of all necessary capacities.  I accept that she had the best opportunity to observe the deceased at the relevant times and that her opinion is sufficient for me to find that the deceased had the necessary testamentary capacity.[4]

[27] The applicant’s opinion of the deceased’s capacity is consistent with the objective evidence which is constituted by the rational way in which he approached the question of revision of his Will, his appreciation of the manner of disposition to various beneficiaries, and the fact that the gifts made under the revised Will do not differ markedly from the August Will. I find that the applicant has satisfied the necessary tests to establish that the deceased had testamentary capacity at all relevant times.

Admission to Probate

[28] The Succession Act 1981 provides for the manner in which a Will must be executed in order for it to be valid. Section 10 provides:

“(1) This section sets out the way a will must be executed.

  1. A will must be--
    1. in writing; and
    2. signed by--
      1. the testator; or
      2. someone else, in the presence of and at the direction of the testator.
  1. The signature must be made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time.
  2. At least 2 of the witnesses must attest and sign the will in the presence of the testator, but not necessarily in the presence of each other.
  3. However, none of the witnesses need to know that the document attested and signed is a will.
  4. The signatures need not be at the foot of the will.
  5. The signature of the testator must be made with the intention of executing the will.
  6. The signature of a person, other than the testator, made in the presence of and at the direction of the testator must be made with the intention of executing the will.
  7. A will need not have an attestation clause.
  8. A person who can not see and attest that a testator has signed a document may not act as a witness to a will.
  9. If a testator purports to make an appointment by will in the exercise of a power of appointment by will, the appointment is not valid unless the will is executed under this section.
  10. If a power is conferred on a person to make an appointment by will and the appointment must be executed in a particular way or with a particular solemnity, the person may make the appointment by a will that is executed under this section but is not executed in the particular way or with the particular solemnity.
  11. This section does not apply to a will made under an order under section 21.9.”

[29] In 2006 the Act was amended in many respects and, of importance for this application, are the amendments which shift the focus from “substantial compliance” with the formal requirements of execution of testamentary instruments to whether a document accurately records testamentary intention.[5]

[30] The applicant relies upon s 18 of the Succession Act which provides:

“18 Court may dispense with execution requirements for will, alteration or revocation

  1. This section applies to a document, or a part of a document, that--
    1. purports to state the testamentary intentions of a deceased person; and
    2. 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--
    1. any evidence relating to the way in which the document or part was executed; and
    2. 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.”

[31] The applicant submits that, pursuant to s 18, either the draft forwarded on 11 December 2003 or the notes of the meeting of February 2003 and some of the deceased’s own notes should be admitted to Probate (as a codicil to the August Will). The fact that most of those pages of notes were only initialled is not of great moment. A testamentary instrument can be “signed” if it is the intention of the parties to indicate their acceptance of it by simply initialling it.[6]

[32] Section 18 was considered by Philippides J in Re Garris.[7] Her Honour considered the requirements of that section and said the following, which I respectfully adopt.

“[8] Similar legislation incorporating a “testamentary intention” test has existed in most other States for some time.[8]  In Hatsatouris v Hatsatouris,[9] Powell JA (with whom Priestley and Stein JJA agreed) said, in considering s 18A, Wills, Probate and Administration Act 1898 (NSW) which is in similar terms to s 18:

‘ … 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?’

[9] It is also useful to note the following observations of Mahoney JA in In the Estate of Masters (Deceased); Hill v Plummer; Plummer v Hill[10] concerning the New South Wales Act:

‘Second, s 18A should, as I have indicated, be given a beneficial application. 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.’

[10] There are a number of decisions in other jurisdictions applying corresponding legislation,[11] but only a few decisions in relation to the application of s 18 since the April 2006 amendments to the Act (Re Hodge[12] and Re Windus[13]) and none are reported. 

[11] In Hodge’s case the court admitted to probate a will which had not been witnessed, having declared it to be the deceased’s will and being satisfied that it was intended by the deceased to form his will. Hodge was a 49 year old truck driver who was found dead in his caravan on 14 August 2006. The cause of his death was a multiple drug overdose combined with alcohol and pneumonia. He was found slumped on his floor surrounded by a large quantity of prescription medication and several empty bottles of alcohol. At his feet was a newsagent kit will which had been completed by the deceased, signed and dated 12 August 2006. (Evidence from a forensic document examiner confirmed the handwriting on the will, as well as the signature, was that of the deceased.) The document was not witnessed as required by the Act. The deceased’s estate was in the order of $80,000. There was medical evidence indicating that the deceased would most likely have been in a coma after the consumption of the alcohol and drugs for about 24 hours and that the deceased died between 13 and 14 December 2006. A forensic document examiner indicated that the document appeared to be in the hand of someone who was not then under the influence of drugs or alcohol in that the handwriting was legible, fluid, consistently neat and not exaggerated.

[12] Re Windus concerned an application for Letters of Administration in circumstances similar to the present case. The document there in question was signed on 12 July 2006 and commenced with the words, ‘In the event of my death’ followed by various dispositions largely to family members and concluding with the words, ‘These are my last wishes’. On the back of the document appeared in capitals:


Affidavit evidence established that the document was in the hand of the deceased and signed with his usual signature. The document did not comply with the attestation requirements of the Act. The deceased died on 22 July 2007 having committed suicide by shooting himself. The application for Letters of Administration was made by the deceased’s mother. Notice of intention to apply for a grant of representation was duly published and no person lodged a caveat nor asserted a right to a grant of representation in relation to the estate. The deceased’s estate was a modest one, the main asset being a home unit subject to a mortgage which had fallen into arrears following the deceased’s death. Orders were made declaring that the testamentary document was intended to be the deceased’s will and that Letters of Administration with the will be granted.’”

[33] In the light of the conversations and revisions which took place, the revised Will which was sent to the deceased on 11 December 2003 represents, in my opinion, the true testamentary intentions of the deceased. In support of that conclusion, the following matters are relevant:

(a) The conference between the applicant and the deceased on 27 February 2007 was convened for the purpose of creating a new Will in which the deceased’s testamentary intentions were to be recorded.

(b) The instructions which were provided on that date were not substantially different from those which were then in force under the August 2000 Will.

(c) Revisions of the Will were prepared pursuant to his instructions in March 2003 and a further revision later in 2003 also upon the deceased’s instructions.

(d) Those instructions, upon consideration of the various notes that were made, evidenced careful consideration by the deceased of the dispositions which he wished to make under his Will.

(e) The deceased had, on the occasions when drafts had been forwarded to him or instructions sought, usually responded within a reasonable period of time and in a sensible and detailed fashion.

(f) The document which was forwarded to him on 11 December 2003 was the result of a series of discussions and considerations which were consistent with his earlier actions.

[34] In those circumstances I have come to the conclusion that the revised Will forwarded to the deceased on 11 December 2003 properly and accurately recorded his testamentary intentions.

[35] I therefore order that the revised Will document forwarded to the deceased on 11 December 2003 be admitted to Probate.

[36] The applicant seeks an order that the costs of and incidental to the application be paid out of the estate of the deceased. That is, in all the circumstances, appropriate.

[37] The second defendant who appeared on the application seeks a similar order. I am satisfied that the circumstances are such that an order for costs out of the estate in favour of the second defendant should also be made.


    [1] Worth v Clasohm (1952) 86 CLR 439

    [2] [2004] QSC 21 at [13].

    [3] See Bailey v Bailey (1924) 34 CLR 558 at 566-567; Boughton v Knight (1873) LR 3 P&D 64 at 76; and Tyrrell v Painton [1894] P 151 at 157

    [4] See Kantor v Vosahlo [2004] VSCA 235

    [5] Explanatory memorandum to the Succession Amendment Bill 2005, p 2

    [6] Re Male [1934] VLR 318 and In the Estate of Radziszewski (1982) 29 SASR 256.

    [7] [2007] QSC 181.

    [8] As to equivalent provisions to s 18 of the Act see: s 18A of the Wills, Probate and Administration Act 1898 (NSW); s 9 of the Wills Act 1997 (Vict); s 12 of the Wills Act 1936 (SA); s 34 of the Wills Act 1970 (WA); s 26 of the Wills Act 1992 (Tas); s 11A of the Wills Act 1968 (ACT).

    [9] [2001] NSWCA 408 at [56].

    [10] (1994) 33 NSWLR 446 at 462.

    [11] In the Estate of Kelly, deceased; Duggan v Hathan [1983] 32 SASR 413, In the Estate of Crossley deceased; Crossley v Crossley & Others [1989] WAR 227, In James v Burdekin & Ors (1990) 3 WAR 298.

    [12] Unreported decision of Moynihan J, delivered 14 February 2007.

    [13] Unreported decision of Philippides J, file no 1412/07, delivered 15 March 2007.


    Editorial Notes

    • Published Case Name:

      Hensler v Padget & Ors

    • Shortened Case Name:

      Hensler v Padget

    • MNC:

      [2008] QSC 82

    • Court:


    • Judge(s):

      Martin J

    • Date:

      02 May 2008

    Appeal Status

    Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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