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In the will of Ethel Florence Panigas (deceased); In the will of John William Panigas (deceased)  QSC 172
LEONIE DENISE BROWN
GARY ROBERT KING
MARK WILLIAM PANIGAS
SC No 373 of 2012
SC No 374 of 2012
Supreme Court at Cairns
16 January 2013
15 January 2013
In respect of the application as it relates to Ethel Florence Panigas:
The application is refused in so far as it relates to the partly handwritten document dated 28 March 2011, purporting to be the last will of the late Ethel Florence Panigas.
Subject to the formal requirements of the Registrar, the will of Ethel Florence Panigas dated 21 March 2003 be admitted to probate as the last valid will of the late Ethel Florence Panigas who died at Atherton on 8 February 2012.
The parties costs of and incidental to the application, including reserved costs, be paid out of the estate of the late Ethel Florence Panigas on the indemnity basis.
In respect of the application as it relates to John William Panigas:
1. The application is refused in so far as it relates to the partly handwritten document dated 28 March 2011, purporting to be the last will of the late John William Panigas.
Subject to the formal requirements of the Registrar, the will of John William Panigas dated 21 March 2003 be admitted to probate as the last valid will of the late John William Panigas who died at Atherton on 23 December 2011.
The parties costs of and incidental to the application, including reserved costs, be paid out of the estate of the late John William Panigas on the indemnity basis.
It is further ordered that:
1. The parties engage in good faith in a mediation.
The parties file and serve any affidavit material to be relied on at the mediation within two months of today.
A mediation be held within three months of today at Cairns.
SUCCESSION LAW – WILLS, PROBATE AND ADMINISTRATION – THE MAKING A WILL – VALIDITY – SUCCESSION ACT – where the deceased made wills on 21 March 2003 – where the deceased purported to make new wills on 28 March 2011 – where neither will purportedly made on 28 March 2011 was properly executed – where applications were made seeking declarations in respect of the validity of the wills purportedly made by the deceased on 28 March 2011 or alternatively the wills made by the deceased on 21 March 2003 – whether the Court should dispense with the execution requirements for the wills made on 28 March 2011 – whether the purported wills of 28 March 2011 should be admitted to probate as the last valid wills of the deceased
Succession Act 1981 (Qld) s 10, s 18
Hatsatouris v Hatsatouris  NSWCA 408, considered
Mahlo v Hehir  QSC 243, applied
Proctor v Klauke  QSC 425, consideredRe: Vogele  1 Qd R 291;  QSC 404, considered
AJP Collins for the first and second applicants
MR Hodge for the first respondent
MA Jonsson for the second respondent
Lilley Grose & Long Solicitors on behalf of the first and second applicant
MacDonnells Law on behalf of the first respondent
Miller Harris Lawyers on behalf of the second respondent
HIS HONOUR: John Panigas died on 23 December 2011. His wife, Ethel, died on 8 February 2012. They were survived by their children, Leonie Brown the applicant, Darryl Panigas and Mark Panigas. They are the only potential beneficiaries of their parents' estate.
John and Ethel each made wills on 21 March 2003. Those wills were prepared by a solicitor and were properly executed.
On 28 March 2011 John and Ethel each purported to make new wills using will kits. Neither will was properly executed in that in respect of each (a) the testator's signature was not made or acknowledged by the testator in the presence of two or more witnesses present at the same time contrary to s 10(3) of the Succession Act 1981 (Qld) (“the Act”) and (b) at least two witnesses did not attest and sign the will in the presence of the testator contrary to s 10(4) of the Act.
There are similar applications before me seeking declarations in respect of the validity of the purported wills of 28 March 2011 and alternatively the validity of the wills of 21 March 2003. There is no dispute as to the validity when made of the wills of 21 March 2003. However, they would be of no effect if the latter purported wills of 2011 are valid wills.
The key issue is whether, notwithstanding the purported wills of 28 March 2011 were not properly executed, the Court should nonetheless conclude those documents formed wills. Such a decision in respect of a document purporting to state the testamentary intentions of a deceased person is open pursuant to s 18(2) of the Act which relevantly provides: "The document forms a will of the deceased person if the Court is satisfied that the person intended the document to form the person's will."
The Court has a broad discretion as to what it can have regard to in making such a decision. That is apparent from ss 18(3) and (4) which relevantly provide:
"(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."
The purported wills were in so-called will kits, Exhibits 1 and 2, purchased by Mark Panigas from the post office at his mother's request. The decision to use will kits was in contrast with the past preparedness of Ethel and John to utilise professionally qualified persons including solicitors but even against that background opting for the cheaper "do-it-yourself" option was hardly a remarkable decision. It was not accompanied by any evidence suggesting an issue as to testamentary capacity. No party suggests there was a lack of testamentary capacity, nor does the evidence suggest it. For instance, the evidence of accountant Graham Turner suggests Ethel and John had a good grasp of their financial affairs including their business operations.
As will be seen, the problem manifesting itself here was not a lack of capacity but, rather, lay incompetence or carelessness in completing the will kits. It is the resulting content of the documents which is problematic.
There exists an array of circumstantial evidence suggesting Ethel and John were likely trying to give rise to wills having legal effect. The very fact they used will kits and a document therein titled "Last Will and Testament" bespeaks such an intention.
Further, they did endeavour, even if not in compliance with s 10, to have the documents properly witnessed. They used arms length witnesses rather than their own children. Those witnesses were Ivy Murray and Gary King. Ms Murray attended at the residence at the so-called top farm on 28 March 2011. Apparently John and Ethel signed a separate document in her presence and she was requested to witness those signatures and asserts she did so. It is apparent from her evidence that no other witness was present.
The other witness to the documents became Mr King, who was fetched by Mr Mark Panigas for that purpose inferentially on that date, although his material does not expressly indicate the date.
At a later stage after he had at least attempted to attend to the witnessing process, it appears likely, although memories are slightly at odds on this, that he had to come back some days later because he had not completed part of the details where he had signed. He did not dispute Mark Panigas' recollection that he later came back and did that.
None of the accounts suggest there was any discussion that occurred around the time of the execution of the documents or earlier of a kind that provided any particular explanation as to the testamentary intentions of the deceased. In short, the circumstances and surrounding circumstances of the purported execution shed little light on what the content of the deceased's testamentary intention was and merely supports the existence of a general intention to make wills.
There is little evidence by way of oral statements made by the deceased as to the detail of their testamentary intention and the completed parts of the will kit documents therefore loom as virtually the only evidentiary indicators of the deceased's testamentary intentions.
The only statement of potential relevance to the substance of their testamentary intention was a statement attributed by Leonie Brown to her mother explaining the new wills were done because Darryl "had gone too far". This was apparently a reference to Darryl's role in an argument or confrontation that had occurred as between he, his father and another person called Luke.
The wills of 2003 had bequeathed property to all three children. Certain real property interests including in the so-called bottom farm were bequeathed to Darryl and certain real property interests including in the so-called top farm were bequeathed to John, with the rest and residue of the estate going to Leonie.
On one view of Ethel's purported will of 2011 she may have been intending to wholly exclude Darryl as a beneficiary under the will.
Another view of her completion of the will kit is that she may merely have intended to materially change and reduce the nature and extent of Darryl's interest under the 2011 purported will compared to the 2003 will.
Either scenario is generally consistent with the decision to make new wills in 2011 being triggered by the argument with Darryl. However, while that may have been the motivating factor to do new wills, the content of the completed parts of the will kits involved considerable uncertainty as to the substance of just what the deceased were actually intending to achieve.
The uncertainty associated with the content of the completed parts of the will kit documents looms large in the application of s 18, particularly given the absence of other evidence as to the substance of the deceased's testamentary intentions. In Hatsatouris v Hatsatouris  NSWCA 408 Powell J, in respect of a New South Wales provision similar to s 18, said:
"It is and has long been my view that the questions arising on applications raising a question as to the applicability of section 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."
Those propositions have often been repeated in subsequent decisions.
I note in Proctor v Klauke  QSC 425 Lyons J observed, in relation to the matters that the court is required to be satisfied about, that Young CJ in Equity in Macey v Finch  NSWSC 933 considered the equivalent provision in the New South Wales legislation and stated that the provision required proof of three matters: firstly that there must be a document, secondly that the document must purport to state the deceased testamentary intentions, and thirdly the document must constitute the will of the deceased.
Finally, in touching on some relevant principles I refer to Mahlo v Hehir  QSC 243 where McMurdo J said:
"The application of section 18 is informed by case law both in Queensland and over a longer period in several Australian jurisdictions ... Of particular relevance for the present case is the judgment of Mahoney JA in the Estate of Masters deceased; Hilby Plummer, who said: 'Section 18A(1) requires not merely that the document propounded 'embody the testamentary intentions of the deceased' but also that the deceased 'intended the document to constitute his ... will'."
I emphasise there the words "embody the testamentary intentions of the deceased". I do so because a feature of this case that initially troubled me was that s 18(2) focuses upon the Court being satisfied the person intended the document to form the person's will. One can well imagine a case where generally speaking the process undertaken reflected an intention that the person would give rise to, through what he or she was doing, a will, and indeed a valid will, but that nonetheless when the detail of what was actually done is examined it can be seen the content of the relevant document did not achieve the intended end of such persons. It is in my view self evident that it is not enough that the person intended through the process they were embarking upon to make a will. The actual document that is the focus of attention needs to be considered. Its content must plainly be relevant in having regard to whether or not the document given rise to was indeed that which was intended to form the will.
Put simply, it is not enough to say, well, they intended to make a will and that satisfies s 18(2). It must be that one looks to the content of the documents generated to assess whether they intended those particular documents, having regard to their actual content, to form their wills.
This case involves a level of uncertainty which has grounded a focus in the submissions upon features of a kind that go to whether or not the level of satisfaction required by s 18(2) can be met.
In some respects Re: Vogele  1 Qd R 291, while different in a factual sense, is an illustration of the sort of problem that I have been grappling with in considering this matter, namely, surrounding uncertainty.
The uncertainty is so great in respect of John's purported 2011 will that none of the parties contend for its validity. Mark, however, contends for the validity of Ethel's purported 2011 will. Darryl contends against it. Leonie takes a somewhat more neutral role consistently with her temporary role as administrator pursuant to an order of the Court for the purpose of advancing the application to determine the validity of the purported 2011 wills.
Both will kits contained directions and other information about making a will as well as two easily removed pro forma documents styled "Draft Will" and "Last Will and Testament". None of those documents were actually removed from either will kit despite the instructions to do so at step 1 of page 4 of the kits. However, that is not of particular significance. It is the documents' contents which are material. Each of the documents contains spaces for writing to be inserted and writing was inserted in some but not all spaces. In at least one instance in both documents writing was inserted where it should not have been, namely, the appointment of a guardian for any minor children. Since none of the deceased's children were minors it was unnecessary to complete this section.
However, that also seems of little material significance. It does not relate per se to testamentary intention and appears to be the product of lay misunderstanding.
Of much greater concern, though not necessarily a determinative concern, there are material variations in each instance in the completed content of the Draft Will and the Last Will and Testament. Within the Draft Will created in each case the deceased purported to appoint Leonie and Geoffrey Brown as primary executors/trustees and Mark as alternative executor/trustee if the primary appointees cannot or are not willing to act. In comparison, under the Last Will and Testament the deceased in each case purported to appoint Leonie and Mark as primary executors/trustees with Geoffrey Brown named as the alternative appointment.
Another inconsistency is the contrasting treatment of the gift provided for in clause 5.1 of the Draft Will. Neither deceased made a gift within their Last Will and Testament which is comparable in its effect to that provided for under clause 5.1 of the draft document they completed. In clause 5.1 of the Draft Will signed by each deceased each deceased provided for gifts of the deceased's interests in Lot 1 on RP 702562 but, as the Title Search exhibited to the most recent affidavit of Mr Liston shows, the co-owners held their interest in that land as joint tenants. On the face of it, there was nothing for the deceased to dispose of in any case. Any purported gift was illusory. In the documents signed by Ethel the deceased purported to gift a one-third share of the Lot to Leonie Brown and a two-thirds share to Mark. That ought to exhaust the gift and dispose of the whole of the interest. In the same clause she also included a further direction that one portion, the meaning of which is unclear, is to be sold for distribution to Darryl "as decided by Mark Panigas/Leonie Brown". That stipulation is difficult to reconcile with the earlier gifts that apparently exhaust the deceased's interest in the property.
Clause 5.1 of the Draft Will created by John really contains similar difficulties. He appeared to direct that one portion of the bottom farm be held for distribution to Darryl as well as the deceased's share of a house that had been described in a manner that is difficult to decipher.
No party contended that the facts warranted a conclusion that the Draft Will and Last Will and Testament documents should be read together as forming single wills. They plainly could not be, given the inconsistency in content between them and the clear indication on the face of the former document that it is only a draft. In short, the content of the drafts only has evidentiary relevance in considering under s 18 whether the document styled Last Will and Testament forms a will. Ultimately the final focus in each instance must be on the Last Will and Testament document. However, it is plain that s 18 does not limit that as the only consideration. The very fact that execution requirements were not properly complied with necessarily means that rather than it being the only consideration the broader circumstances can be considered.
In John's case the Last Will and Testament document contained no writing making gifts or bequeathing the residuary estate. It is very unlikely that, having decided to make a will, John did not intend to identify who he wanted to leave property to and what that property was. It is impossible to know whether the failure to include information which is ordinarily the raison detre of a will was deliberate or the product of lay misunderstanding.
Section 18 requires the Court to be satisfied that the purported testator intended the document styled Last Will and Testament to form that person's will. The consideration cannot be approached merely by considering whether the person intended by the process undertaken to make a will. That would be to ignore the content of the document. Section 18(2) refers to the document not the process undertaken. In applying s 18(2) regard must inevitably be had to the contents of the document. That follows from the opening words of s 18(3), but it also follows as a matter of logic. It cannot be said that a purported testator intended a document to form the will of that person if the document's content does not reflect the person's testamentary intention at that time.
In John's case the omission of any gift or bequeathing of residue from the Last Will and Testament document renders it inherently unlikely that document reflected his testamentary intention. He may have been intending to make a will but the document which he actually gave rise to was not intended to be his will. It is not a valid will.
The issues in respect of Ethel's will are somewhat more finely balanced. Her Last Will and Testament document did at least purport to bequeath her residuary estate. It was purportedly bequeathed to Mark and Leonie. However, as already mentioned, it contained no writing in the gift section whereas it had done so in the draft version. It will be recalled there were internal inconsistencies in that draft gift section but that Darryl was at least named as a purported beneficiary of sorts. On the other hand, he was not named in any way in the purported final document. It may well be that a deliberate decision was made not to include a gift when it came to the final document.
Mark and Leonie submit that document despite the technical execution flaws can be read in effect as a stand-alone document as meaning what it says. However, because it was not properly executed, then it can only be valid if the Court is satisfied under s 18(2) that its content does not fall to be considered in isolation from the surrounding evidence. As already mentioned, it is not enough that Ethel intended the process she was engaged in to give rise to a will. Ethel must have intended the document styled Last Will and Testament to be her will, that is, it is necessary that the content of the document reflected her testamentary intention. The evidence casts serious doubt on whether that document did reflect her testamentary intention, specifically whether she intended to exclude Darryl or only diminish the nature and extent of his beneficial interest compared to his interest under the 2003 wills or whether there was some other unknown intention.
If the argument involving Darryl was the catalyst to make new wills, as the evidence suggested, and if she intended to entirely exclude Darryl, as the final document seemingly does, why then did she go to the trouble of purporting to include him, however ineptly, in her draft? The uncertainty attaching to this aspect and the real prospect of some unintended omission in the final version is compounded by the fact that in the last document on page 1 after the gift section the section for signatures was not filled out. On the other hand, it was in the equivalent version of the draft in page 1.
The point I make is difficult to appreciate without actually sighting the exhibit. A viewing of the exhibit shows that the way the pages of the Draft Will and the Last Will and Testament are configured is that they are essentially inverted so that one reads page 1 of the Draft Will then overleaf the second page of it, then page 2 of the Last Will and Testament and then overleaf the first of it. One is left with the curiosity then that the signatures of the testator and witnesses at the base of page 1 of the Draft Will are present but not present at the base of page 1 of the Last Will and Testament. The converse applies to the respective second pages of each.
It is not the omission alone of anything referred to by way of gift in the Last Will and Testament that is critical but when it is considered in conjunction with the location on the first page of where the writing is to occur and when it is considered that after that passage still on page 1 was to appear the relevant signatures of the testator and witnesses, which are not included, the impression there may have been an error in the completion of the document - and, to be clear, the substance of the document not merely the insertion of signatures - is inescapable.
It is these features considered against the whole of the circumstances which after overnight deliberation caused me to conclude that I am not satisfied as required by s 18(2) in respect of Ethel's purported will of 2011. It follows then that I find it is not a will either. It follows from those conclusions that in so far as the applications relate to the purported wills of 28 of March 2011 they ought be refused but they ought succeed obviously in so far as one is concerned with the validity of the wills of 21 March 2003.
Mr Jonsson's submissions provided a draft order. It was submitted that perhaps paragraph 1 of that draft order may be surplusage, but I see no harm in retaining it. The real force of the order is obviously in order 2: Subject to the formal requirements of the Registrar, it is ordered that the wills of March 2003 be admitted to probate as the last will of each of the testators.
Before I order as per that draft, it is necessary to hear the parties as to costs. So I cease taking in reasons for that purpose. Yes?
HIS HONOUR: My orders in respect of the application as it relates to Ethel Florence Panigas are as follows:
- The application is refused in so far as it relates to the partly handwritten document dated 28 March 2011, purporting to be the last will of the late Ethel Florence Panigas.
- Subject to the formal requirements of the Registrar, the will of Ethel Florence Panigas dated 21 March 2003 be admitted to probate as the last valid will of the late Ethel Florence Panigas who died at Atherton on 8 February 2012.
- The parties costs of and incidental to the application, including reserved costs, be paid out of the estate of the late Ethel Florence Panigas on the indemnity basis.
My orders in respect of the application as it relates to John William Panigas are as follows:
- The application is refused in so far as it relates to the partly handwritten document dated 28 March 2011, purporting to be the last will of the late John William Panigas.
- Subject to the formal requirements of the Registrar, the will of John William Panigas dated 21 March 2003 be admitted to probate as the last valid will of the late John William Panigas who died at Atherton on 23 December 2011.
- The parties costs of and incidental to the application, including reserved costs, be paid out of the estate of the late John William Panigas on the indemnity basis.
Any other matters?
HIS HONOUR: All right. Well, I further order that:
- The parties engage in good faith in a mediation.
- The parties file and serve any affidavit material to be relied on at the mediation within two months of today.
- A mediation be held within three months of today at Cairns.
- Published Case Name:
In the will of Ethel Florence Panigas (deceased); In the will of John William Panigas (deceased)
- Shortened Case Name:
 QSC 172
16 Jan 2013