McNamara, Re[2021] QSC 148

SUPREME COURT OF QUEENSLAND

HENRY J:   David McNamara died without a will.  A will had been prepared for him by a solicitor, but he had not executed it.  The unexecuted will nominated his wife, the applicant, as executor.  She now seeks a declaration pursuant to s 18 Succession Act 1981 (Qld) that the unexecuted will is Mr McNamara’s will, and seeks a grant of probate to her.  She alternatively seeks an order there be a grant of letters of administration on intestacy to her as administrator.  The latter order should be made and the application otherwise dismissed insofar as it seeks to invoke s 18.

Section 18(1) provides the section applies to a document which purports to state the testamentary intentions of a deceased person and has not been executed under part 2.  The unexecuted will is such a document.  It articulates an intention to give the applicant the marital home at Aloomba, the deceased’s superannuation and insurance benefits and 50 per cent of the estate’s residue.  The other 50 per cent is purportedly gifted in equal shares to his three children from a former marriage.  They appear as intervenors in the application. 

Accepting then that the unexecuted will is a document to which s 18 applies, the determinative issue is whether it meets the requirements of s 18(2), 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…”

In Hatsatouris v Hatsatouris [2001] NSWCA 408 [56], Powell JA, with whom Priestley and Stein JJA agreed, observed of s 18’s New South Wales analogue:

“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:

1. (a)
   was there a document,
2. (b)
   did that document purport to embody the testamentary intentions of the relevant deceased?
3. (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?”

That approach was followed by the Queensland Court of Appeal in Lindsay v McGrath [2016] 2 Qd R 160, as it was in respect of a similar provision by the West Australian Court of Appeal in Oreski v Ikac [2008] WASCA 220.  In Lindsay v McGrath, Boddice J, with whom Gotterson JA agreed, observed, relevantly to the third requirement of that approach, at 186:

“That requirement does not involve establishing that the deceased consciously set his or her mind to the legal formalities of making a Will.  However, it is not enough that the document set out the deceased’s testamentary intentions.  What must be established, by evidence, is that the deceased intended the document to operate to dispose of the deceased’s property upon death… To satisfy the onus, the evidence must show more than that the particular document sets out the deceased’s testamentary intentions or that it is consistent with other statements the deceased made about what he or she wanted to happen to the property upon death.  The evidence must establish on the balance of probabilities that the deceased wanted the particular document to be his or her final Will, and did not want to make any changes to that document.  The expression “without more”, used by Powell JA in Hatsatouris, emphasizes the distinction between a document which merely records testamentary intentions and a document which records such intentions in a complete and concluded way such that it is intended by the author to operate as his or her last Will.” 

Applications seeking to invoke the operation of s 18(2) often involve evidence of some purported act of execution which does not comply with the execution requirements of the Succession Act but which was obviously intended in the lay mind of the deceased to serve as execution.  It is often apparent that, by such an act, the deceased manifested an intention that, henceforth, the purportedly executed document would operate as his or her will.  This is not that type of case.  There was no purported act of execution at all.  Is there some other feature of the evidence here which allows the requisite satisfaction that the deceased intended that the unexecuted document would have operative effect so that it would form his will? 

The evidence shows the applicant and Mr McNamara had been residing at the Aloomba property as a de facto couple for some years when, on 19 September 2019, they both attended a solicitor and gave instructions for the making of their wills.  Draft copies were received by them on 23 September 2019.  The applicant deposes Mr McNamara asked her to have the solicitor vary his draft will to include his brother as an alternate executor.  The revised version was forwarded by email on 27 September.

The applicant deposes the deceased said, on 7 October 2019, that he was happy with the content and that he asked her to make an appointment to sign their wills.  She did not do so forthwith because of the deceased’s unavailability.  The deceased kept changing the day he indicated he would have time, that notional day being a day reserved for maintenance work on the vehicles of his business.  The applicant deposes:

“After the last time the maintenance time was changed I asked David when he was going to be free to make another appointment and he said to me “Can’t I just sign it and you take it in?”  I said to him “No, it has to be witnessed”.  There was no one around to witness our wills.  He said to me “Can’t the dog witness it?”  I just laughed.

It was the middle of the cane cutting season at this time.  David’s business was very busy.  After the Mud season had finished, Christmas and New Year rolled along.

David and I were married at the property on 28 March 2020 in the presence of my two children and David’s two daughters.  Due to COVID-19, it was a quiet wedding.  We had intended to get married at Fitzroy Island.  Our draft wills were made in contemplation of our marriage.

Due to David’s heart condition David and I isolated as much as possible during COVID-19, in particular during late March up to the date of his death.  When David did work he only took on jobs where contact with others was limited or he only took on work he could do on his own using his earthmoving equipment such as the grader loader or excavator.  David avoided going into Cairns during COVID-19 wherever possible.

David and I were not contacted again by our former solicitors to sign our wills.

David died suddenly on 25 July, 2020.”

The deceased and applicant seemed to have been under the erroneous impression the will could only be executed by attending on the solicitor.  Nonetheless, there had to have been many, many chances for the deceased to make time to do just that, particularly in the long time from October 2019 to February 2020, before the COVID-19 pandemic may have made that somewhat more difficult. 

The affidavit of Mr McNamara’s good friend, Alan Clingeleffer, is instructive.  In his affidavit he deposes:

“David and I used to speak about all sorts of things including what would happen to his estate when he died.  David had a heart condition for several years, therefore, it was not unusual for us to talk about such things.

David told me he wanted to get his affairs in order because he had a feeling that things would not go smoothly when he died.

David had told me several times that he wanted to provide for both Ema and his children.  When we did discuss his estate he mainly spoke about leaving the house to Ema.

On or about June 2020 which is the last time I spoke to David before he died, he told me and I believed him that he had been to see a solicitor about his wishes and that he was leaving the house and property to Ema.  At this time I knew that they had built the house together on his property at Aloomba.” 

The final paragraph of the above-quoted passage certainly reveals the content of the unexecuted will did conform with the professed testamentary intention of the deceased, at least in one respect.  Nonetheless, the actual words used at that paragraph remain uncertain, and I do not interpret it to involve some positive indication that the deceased apprehended he had actually taken the step necessary for the unexecuted will to be operative. 

The above-quoted passage is particularly instructive by reason of its reference to the deceased’s observation that he felt “things would not go smoothly when he died”, which likely reflects a tension in the deceased’s mind, borne of the mixed loyalties  that no doubt would apply in deciding how he could keep all of his loved ones happy.  That particular passage, I think, heralds an obvious explanation as to why the deceased seems to have continually postponed and avoided attending the executing of the will.  His conduct bespeaks a lack of conviction or a hesitancy in perfecting his choice to favour his wife relative to his children, at least to the extent that the unexecuted will purported to do. It is, of course, well known to the human condition that from time to time, decisions involving a choice between conflicting loyalties are dealt with by being avoided. 

In the circumstances, I am not satisfied the deceased’s mind had reached the point where he intended the unexecuted will would be operative or, to use the words of s 18, where he intended the unexecuted will to form his will.  It follows the application must fail as to the first set of orders sought. 

It is common ground in those circumstances that I should grant the alternative order sought.  I do so, ordering as per the draft order before me, signed by me and placed with the papers.