Re Padmore[2021] QSC 324

SUPREME COURT OF QUEENSLAND

Geoffrey Padmore died in December 2019. In April 2017, he executed a will which complied with the requirements of s 10 of the Succession Act 1981 (“the Act”). This application concerns a document which is said to be in the deceased’s handwriting and to have been created in October 2019. The applicant says that the document is either a codicil to the will made in 2017 or a new will. It does not comply with the requirements of s 10. The applicant seeks an order under s 18 of the Act that the document forms all or part of the will of the deceased.

In 1996, the deceased bought a house in Thornlands – I will refer to it as “the home” – and Dawn Ward commenced living with him in that house. They remained together until he died. There is no dispute that they were in a de facto relationship. He had three children from an earlier relationship and Dawn Ward had four. The deceased made at least two wills which satisfied the requirements of s 10.

In 2008, he made a will in which he left the home to Dawn Ward, made specific gifts to his children, and divided the residue among his children and his sister. In the will made in 2017, he left a life interest in the home to Dawn Ward and the residue of the estate was to be divided equally among his children and Dawn Ward’s children.

In September 2019, the deceased become unwell and was hospitalised for several days. He expressed a desire to update his enduring power of attorney and his will. To that end, he obtained a certificate from a medical practitioner to the effect that he had the necessary capacity to make amendments to his existing will. After he was discharged from hospital, he took steps with respect to his will and instructed his solicitor that he wished to change it.

On 1 October 2019, a solicitor from Mott and Associates met the deceased. There is a file note which records the gist of what occurred at that meeting. The deceased gave the solicitor the letter from the general practitioner relating to his capacity and discussed the deceased’s desire to “ensure that Dawn gets the house”. The solicitor provided a number of options to the deceased as to how that might occur. The solicitor recorded that the deceased did not want to change his will “at this point”. The deceased signed a “no will acknowledgement” and it is recorded that the deceased would come back to the solicitor after he had thought about it.

The solicitor had contact with Dawn Ward on 15 October 2019. On 16 October 2019, he spoke to the deceased by telephone. The deceased said he would be out of hospital in a couple of days and would come to see the solicitor then. That arrangement was recorded in a letter of 18 October 2019 from Mott and Associates to the deceased.

In November 2019, the deceased’s condition deteriorated, and he died on 1 December 2019. The document the subject of this application is said by Dawn Ward to have been created on 13 October 2019, the day before he was re-admitted to hospital. Her evidence is that he wrote the document, he showed it to her and said words to the effect, “I have written my changes to my will down because the solicitor is taking so long.”  The document is written in an unsteady hand and, with one exception, it is in biro and contains some spelling errors. It provides for the following:

1. (a)
   25 per cent of his residuary estate to his daughter, Julianne Gibson,
2. (b)
   the remainder to Elizabeth Padmore and David Padmore, and
3. (c)
   the home to Dawn Ward.

After that part of the document, it appears to be signed “Geoff Padmore” with a word before the name which may be the word “signed”. That is followed by an entry which reads “to become part of my will” and what appear to be the initials “GWP” then appears under that line. The balance of the document is as follows: “Execurs Andre Ward, Marie Ward of 92 Paperbark Street, Mogull”. After that entry, there appears to be a signature of G.W. Padmore. The word “executors” is misspelt as is the word “Moggill”. The name Andre Ward is, no doubt, meant to be Andrew Ward, who is one of Dawn Ward’s children. Marie Ward is his wife.

The respondent points to the unusual nature of the document in that it appears to have been signed in a different way in two places and there appears to be the deceased’s initials on a third part. There is no explanation for that other than the possibility that the deceased made this document and attempted to afford it some formality by signing or placing initials after each of three sections of the document. The respondent seeks to cast doubt upon the validity of the document by closely examining the records of the solicitors who had been consulted by the deceased and the unusual nature of the document itself.

In particular, the respondent refers to the decision in Lindsay v McGrath^[1] which dealt with the three requirements generally accepted to apply to an application under section 18. Those requirements are:

1. (a)
    that there was a document,

2. (b)
    that the document purported to embody the testamentary intentions of the deceased, and

3. (c)
    that the Court is satisfied that either at the time of the document being brought into existence or at some later time the deceased demonstrated that it was his intention that the document should, without more on his part, operate as his will.

In that decision, Boddice J (with whom Gotterson JA agreed) observed:

“[59] The third requirement requires the Court to be satisfied on the evidence that the deceased, either at the time of drafting the document or subsequently, formed the intention that the particular document operate as his or her Will. 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.

[60] Great care is to be taken in the evaluation of the relevant evidence. 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.

[61] 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. On this aspect, the observations of Habersberger J in Fast v Rockman are apposite:

‘Like Murray J in Dolan v Dolan, I consider that the words ‘without more’ have been mentioned by way of emphasising that the court must besatisfied that the deceased really did intend the terms of the document – ‘without any alteration or reservation’ – to be the manner in which his or her property was to be disposed of upon his or her death. Or as EM Heenan J put it in Mitchell v Mitchell, the words ‘without more’ were used in Oreski v Ikac:

‘… to emphasise the need for the document being propounded for proof as an informal will to express the concluded testamentary intentions and decision of the deceased rather than being some provisional, preliminary or tentative proposal which had not by then received the deceased’s full assent.’”

(Footnotes omitted)”

Another matter to which the respondent draws attention is that Dawn Ward says, in her affidavit, that she “showed the solicitor Geoff’s handwritten will from the night before”. This was said to have occurred on 14 October 2019. There is no reference in any of the file notes made by the solicitor to having seen such a document. This application exemplifies the difficulty of attempting to resolve questions of fact on the basis of affidavit evidence alone. Ms Ward was not challenged on her evidence. It would have been possible to require her for cross-examination but that was not done. Similarly, it would have been open to seek evidence from the solicitor. It may be that a busy solicitor would not recall the fine detail of what had occurred. But all that has been obtained are the file notes and nothing more.

As I say, Ms Ward’s evidence that the deceased told her that he had written down his changes to his will was not challenged but was sought to be discounted by implication. The gift of the property to Dawn Ward would not be unusual or perverse in the circumstances of a longstanding relationship. It was indeed the express intention of the deceased in the first of the two wills referred to above. It was also consistent with the desire recorded by the solicitor to have Dawn Ward receive the home.

The conduct of the deceased as recorded in the solicitor’s file notes is also consistent with the deceased having been satisfied that he had done all that was necessary to achieve that end. There are some unusual features about the document, and I have referred to them. But that occurs in informal documents and, in particular, one which is created by an elderly person desirous of attending to his affairs.

I am satisfied that the document does meet the requirements in s 18 of the Act in the following ways: 

1. (a)
   There is a document;
2. (b)
   It is signed at least twice by the deceased but is not witnessed and so does not comply with the Act;
3. (c)
   It does purport to embody the testamentary intention of the deceased as it says it is “to become part of my will”;
4. (d)
   The deceased did demonstrate that it was his intention that the document should, without more, operate as all or part of his will as can be drawn from the statement made by him to Dawn Ward; and
5. (e)
   The deceased did have testamentary capacity at the relevant time.

As the document says it is to be part of his will, I will make an order granting probate of the 2017 will and the handwritten document as a codicil.

I will make an order that each party’s costs come out of the estate on an indemnity basis.