Re Sheehan[2021] QSC 89

SUPREME COURT OF QUEENSLAND

1. [1]
   This is an application for probate of an informal will or, expressed another way, a will that was not executed in accordance with the formal requirements of the governing legislation.
2. [2]
   The deceased, Mr Stan Sheehan, died at the Gold Coast University Hospital on 1 December 2020 leaving an estate in Queensland. He was 70 years of age.
3. [3]
   On 2 November 2020, he attempted with the help of his solicitors to execute a will from his hospital bed in a way that took advantage of subordinate legislation promulgated earlier last year in response to the COVID-19 pandemic. The altered regime under that legislation allowed for wills to be witnessed by audio visual link. In any such case, the testator is required to sign each page of the will but, here, the deceased omitted to sign one of the pages of the will as well as an accompanying schedule. Because the instrument therefore does not comply with the formal requirements for the making of a will, it became necessary for the persons named as executors under it – the deceased’s friend and business associate (Mr Loveday) and brother (Mr Noel Sheehan) – to apply for probate of it under s 18 of the Succession Act 1981 (Qld). As counsel for the applicants pointed out on the hearing of this application, the unfortunate irony is that there is no requirement to sign every page of a will under s 10 of the Succession Act.  Therefore, had the instrument in question been signed by the deceased in the usual way, that is to say, in the physical presence of the witnesses, it would have been duly executed and there would have been no need for this application.
4. [4]
   It was plain on the evidence before the court that the solicitor who took instructions, prepared the will and supervised its execution, Ms Cornford-Scott, brought a high degree of competence and diligence to bear on those tasks, as well as in the provision of advice to the deceased regarding what was (and remains) a complicated estate with a multiplicity of potentially affected persons. Audio-visual recordings of the critical parts of the process were placed before the court. They are of excellent quality and allowed the court to make its own assessment of the deceased’s understanding and intent. Despite Ms Cornford-Scott’s best efforts, the execution of the will fell short of the legislative requirements, but the bringing of this application will not have any diminishing effect on the estate. That is because Ms Cornford-Scott has rightly refused to charge any fee for the work required to remedy this irregularity and, to their considerable credit, counsel for the applicants – Ms Brewer leading Ms Coore – agreed to assist Ms Cornford-Scott by appearing on the application pro bono.
5. [5]
   At the conclusion of the hearing on 15 March 2021 I granted probate of the will executed by the deceased on 2 November 2020. What follows are my reasons for doing so.

The altered regime for the execution and witnessing of wills during the COVID-19 pandemic

6. [6]
   By s 10 of the Succession Act, a will must be in writing and signed by the testator in the presence of two witnesses. However, on 23 April 2020, the COVID-19 Emergency Response Act 2020 (Qld) came into force.^[1] It contains a regulation-making power where an Act (here, the Succession Act) requires or permits, amongst other things, the signing and witnessing of documents.^[2] It further provides that such a regulation may modify the requirements or arrangements about signing or witnessing such documents and that occurred when the Justice Legislation (COVID-19 Emergency Response—Wills and Enduring Documents) Regulation 2020 (Qld)^[3] was promulgated on 15 May 2020.
7. [7]
   Regulation 7 is as follows:

“7 Presence by audio visual link

A requirement under the Succession Act 1981 or another law for the presence of a witness, signatory, substitute signatory or other person in relation to the making, signing or witnessing of a will is taken to be satisfied if—

1. (a)
   the witness, signatory, substitute signatory or other person is present by audio visual link; and

2. (b)
   the making, signing or witnessing of the will is carried out in accordance with part 4.”

8. [8]
   Regulation 17(1) is in Part 4. It is in these terms:

“17 General requirements for witnessing documents

A document may be witnessed by audio visual link only if—

1. (a)
   if applicable, the witness observes the signatory direct the substitute signatory to sign the document; and

2. (b)
   the audio visual link enables the witness to be satisfied, by the sounds and images made by the link, that the signatory or substitute signatory is signing the document; and

3. (c)
   the witness observes the signatory or substitute signatory signing the document in real time; and

4. (d)
   the signatory or substitute signatory signs each page of the document; and

5. (e)
   the witness is satisfied that the signatory is freely and voluntarily signing the document or directing the substitute signatory to sign the document.”

9. [9]
   Ms Cornford-Scott was retained by Mr Loveday (on behalf of the deceased) in July 2020 to prepare a new will as well as an enduring power of attorney for the deceased. Mr Loveday informed Ms Cornford-Scott that the deceased had been diagnosed with a brain tumour and was going into hospital the following afternoon to have some tests. Ms Cornford-Scott promptly arranged an online meeting with the deceased (via Zoom) and had a number of other conversations that day to discuss his estate planning and EPA. On 15 July 2020, the deceased executed an EPA (via Zoom). It was witnessed by Ms Cornford-Scott in accordance with the requirements of the regulation to which I have just referred. At the same time, the deceased advised Ms Cornford-Scott that had not finalised his thoughts regarding the disposition of his estate by will and that he would get back to her in that regard after he was discharged from hospital. Subsequently, Ms Cornford-Scott followed-up the deceased on a number of occasions in an attempt to finalise instructions for his will but, on any view, the deceased led a very busy life and instructions were not forthcoming.
10. [10]
    On 26 October 2020, Mr Loveday contacted Ms Cornford-Scott. He informed her that the deceased was back in hospital for exploratory brain surgery. Ms Cornford-Scott was given to understand, as was no doubt the fact, that this would be a serious procedure. Accordingly, on Friday, 30 October, Ms Cornford-Scott met with the deceased (via Zoom) to finalise the instructions for his will. Mr Loveday was physically present with the deceased during this meeting to assist him with the audio visual link. The deceased informed Ms Cornford-Scott that the exploratory surgery was scheduled to take place on the following Tuesday (3 November 2020) and provided her with final instructions regarding the disposition of his estate. Ms Cornford-Scott believed that the deceased understood what was being discussed and fully comprehended the issues he needed to consider. I can only agree; the meeting having been recorded with the deceased’s consent and the footage tendered in evidence on the hearing of this application, along with a transcript.
11. [11]
    Ms Cornford-Scott prepared the will urgently and emailed a draft to Mr Loveday, along with an accompanying schedule, on Sunday, 1 November 2020. Mr Loveday printed a hard copy and took it to the deceased in the hospital.
12. [12]
    The next day (2 November 2020), Ms Cornford-Scott met with the deceased and Mr Loveday online (via Zoom) for the purpose of the deceased executing the will. Again, this meeting was recorded with the deceased’s consent and a copy of that footage was tendered in evidence on the hearing of this application as well as a transcript. During this meeting, Ms Cornford-Scott asked the deceased:

    1. (a)
       if he had read the will and read her covering explanatory letter, to which he responded he had and that he was happy with the terms of the will;
    2. (b)
       if he wanted to read through the will again, to which he responded in the negative before adding that he saw no need to do so because he happy with it;
    3. (c)
       to show her the will on camera by holding it up to confirm that it was the same document which she had emailed to Mr Loveday, which he then did. Ms Cornford-Scott was satisfied that the document on the screen was the same as the document she had emailed; and
    4. (d)
       to sign every page of the will. Before doing so, Mr Loveday redirected the camera so that Ms Cornford-Scott, and her administrative assistant, Ms Veukiso could see. Ms Cornford Scott and Ms Veukiso then watched the deceased appear to sign every page of the will, after which, Ms Cornford-Scott asked the deceased to insert the date, which he appeared to so.
13. [13]
    Ms Cornford-Scott then asked Mr Loveday to scan and email a copy of the executed will for her and Ms Veukiso to witness it. That duly occurred at 7.38 pm the same day but, on perusal of the scanned copy, Ms Cornford-Scott noticed that the deceased had not signed the fifth page of the will and that the schedule was not attached.
14. [14]
    Accordingly, early the next morning, Ms Corford-Scott contacted Mr Loveday to draw these irregularities to his attention but, by then, the deceased was going in for surgery. They agreed that Mr Loveday would take an unsigned copy of the will to the deceased after his surgery for re-execution. Unfortunately, the deceased became increasingly unwell after his surgery, and never recovered sufficiently to re-execute the will. He died a little under a month later.

The remedial power conferred by s 18 of the Succession Act 1981 (Qld)

15. [15]
    A broad power is conferred on the court by s 18 of the Act to admit a “document” to probate that does not comply with the formal requirements of the Act if satisfied that the document embodies the testamentary intentions of a deceased person.
16. [16]
    Section 18 provides:

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

1. (1)
   This section applies to a document, or a part of a document, that—

1. (a)
   purports to state the testamentary intentions of a deceased person; and

2. (b)
   has not been executed under this part.

2. (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. (3)
   In making a decision under subsection (2), the court may, in addition to the document or part, have regard to—

1. (a)
   any evidence relating to the way in which the document or part was executed; and

2. (b)
   any evidence of the person’s testamentary intentions, including evidence of statements made by the person.

4. (4)
   Subsection (3) does not limit the matters a court may have regard to in making a decision under subsection (2).

5. (5)
   This section applies to a document, or a part of a document, whether the document came into existence within or outside the State.”

17. [17]
    When deciding whether the remedial power under s 18 of the Act may be called in aid, the court will be interested in three things: first, whether there was a document; second, if so, did the document purport to embody the testamentary intentions of the deceased; and third, did the deceased intend that the document would operate as his or her last will.^[4] In the last-mentioned respect, there will need to be satisfactory evidence to demonstrate (either at the time the document is brought into existence or at some later time) that the deceased, by some act or words, manifested the intention that the document should, without more on his or her part operate as his or her will. In examining the evidence in this regard, the court must keep in mind that the evidence is to be evaluated in accordance with the Briginshaw^[5] principles.^[6] As Boddice J (with whom Gotterson JA agreed) said in Lindsay v McGrath:^[7]

“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.

…

Documents which contain only preliminary, tentative or incomplete expressions of a deceased’s testamentary intentions, or which on the evidence are demonstrated to have been prepared for consideration, further thought, deliberation or possible revision, will not suffice for the purposes of s 18 as the evidence will not establish the document in question embodied the settled testamentary intentions of the deceased.”^[8]

18. [18]
    Also, the following observations of Mahoney JA in Estate of Masters (Deceased); Hill v Plummer; Plummer v Hill^[9] in relation to a cognate provision are instructive:

“Secondly, 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]

Testamentary capacity

19. [19]
    Where, as here, there is non-compliance with the formal requirements for the execution of a will, no presumption of capacity will arise and the onus will be on the party propounding the informal document to prove that the deceased had testamentary capacity at the time when he or she made the will.^[11]
20. [20]
    In that regard, the test was conveniently summarised by Applegarth J in Frizzo & Anor v Frizzo & Ors^[12] as follows:

“The classic test for testamentary capacity was enunciated in Banks v Goodfellow. The relevant principles were restated by Powell JA in Read v Carmody:

1. The testatrix must be aware, and appreciate the significance, of the act in the law upon which she is about to embark;

2. The testatrix must be aware, at least in general terms, of the nature, extent and value of the estate over which she has a disposing power;

3. The testatrix must be aware of those who may reasonably be thought to have a claim upon her testamentary bounty, and the basis for, and nature of, the claims of such persons;

4. The testatrix must have the ability to evaluate, and discriminate between, the respective strengths of the claims of such persons.

In this last respect, in the words of Banks v Goodfellow, no disorder of the mind should poison her affections or pervert her sense of right, nor any insane delusion influence her will, nor anything else prevent the exercise of her natural faculties. 

The Banks v Goodfellow test does not require perfect mental balance and clarity; rather, it is a question of degree. As Cockburn CJ put it in that case, ‘the mental power may be reduced below the ordinary standard’ provided the testatrix retains ‘sufficient intelligence to understand and appreciate the testamentary act in its different bearings’.”^[13]

Advertising and service

21. [21]
    Before turning to an application of the facts of this case to the law I have outlined above (at [6] to [8] and [15] to [20]), it should be recorded that all required public advertising of this application has taken place and notice was given to the Public Trustee. In that respect, in the deceased’s lifetime there were what might be described as three separate written manifestations of his testamentary intent:

    1. (a)
       a will dated 23 April 2004;
    2. (b)
       a photocopy of the copy of the 2004 will with handwritten annotations on it which appear to have been made by the deceased on 27 February 2008; and
    3. (c)
       the subject will executed on 2 November 2020.
22. [22]
    All persons who were interested under the 2004 will, the 2008 informal will and the subject will were served with the application and supporting material (including, in most case, a link to the audio visual recordings of the Zoom meetings held on 30 October 2020 and 2 November 2020). There were 41 such persons, two of whom are no longer alive, 25 of whom indicated that they did not wish to appear on the hearing of the application, eight of whom indicated that they would be appearing and six of whom gave no indication one way or the other. On the hearing, a number of such persons appeared (by telephone). There was no opposition to the grant although some questions were asked regarding the state of the evidence so far as the deceased’s testamentary capacity was concerned.

Why was probate granted?

23. [23]
    As earlier mentioned, at the conclusion of the hearing of the application, I granted probate of the will executed by the deceased on 2 November 2020. When all was said and done, the case for a grant of probate was overwhelming.
24. [24]
    In the first place, not only was there was a document and one that purported to embody the testamentary intentions of the deceased, it was plainly established on all of the evidence that the deceased intended it to take immediate effect as his last will. So much was demonstrated by part of the recorded exchange between Ms Cornford-Scott and the deceased. After the deceased executed the will but before Ms Cornford-Scott and Ms Veukiso witnessed it, Ms Cornford Scott said to the deceased:

“Alright so Stan, that’s valid now even though we haven’t signed it, that’s now valid … and so Marissa and I just sign it and I just prepare a certificate confirming that we’ve watched you and it’s all been done properly…;”

to which the deceased replied:

“… that’s great and, as you say, it is all being recorded anyway…”

25. [25]
    As for the deceased’s testamentary capacity, the evidence was all one way and compelled the conclusion that he had capacity when he gave instructions for, and executed, his will on 2 November 2020. Helped to a considerable degree by the clarity of the audio visual recordings of the relevant “meeting”, I was left with the firm impression that the deceased was at all times sharp and alert. He well-understood what was being discussed, the nature and effect of the terms of the proposed will, the potential claims on his bounty, the nature and extent of his assets and his ongoing (and complex) business operations. He gave precise instructions regarding the distribution of his assets in the event of his death, fully comprehended the issues he needed to consider and, when discussing these issues, responded without any hesitation or uncertainty. At all material times, the deceased presented as a man in complete control of his own affairs. Unsurprisingly, there was not the slightest suggestion in any of the material before the court that the deceased’s testamentary capacity was compromised in any respect.

26. [26]
    It followed that on proper consideration of the body of evidence placed before the court, the only course open was to grant probate.