In the Will of Eileen Duffus deceased
[2022] QSC 149
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- Unreported Judgment
In the Will of Eileen Duffus deceased[2022] QSC 149
In the Will of Eileen Duffus deceased[2022] QSC 149
SUPREME COURT OF QUEENSLAND
CITATION: | In the Will of Eileen Duffus deceased [2022] QSC 149 |
PARTIES: | TREVOR BRADEN DUFFUS and BARBARA GEANE MCKAY (Applicants) |
FILE NO/S: | BS 3997 of 2022 |
DIVISION: | Trial |
PROCEEDING: | Application for probate |
ORIGINATING COURT: | Supreme Court of Queensland |
DELIVERED ON: | 19 July 2022 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Decision without an oral hearing |
JUDGE: | Bradley J |
ORDER: | THE ORDER OF THE COURT IS THAT:
|
CATCHWORDS: | SUCCESSION – MAKING OF A WILL – TESTAMENTARY INSTRUMENTS – INFORMAL WILLS – DISPENSING WITH EXECUTION REQUIREMENTS FOR WILL – where an instrument intended to be a will was signed in many places by the testatrix in the presence of two witnesses, but the final signing clause was not signed by the testatrix – where the witnesses gave evidence that the testatrix intended to execute the instrument as her last will and testament – where an alteration of the printed date on the final page was initialled by the testatrix and the witnesses – whether the document should be admitted to probate |
SOLICITORS: | Briese Lawyers for the applicants |
- [1]This is an application for a grant of probate in common form. The instrument the subject of the application is in the form of a Will. It has a cover sheet followed by four pages of typewritten provisions. It is signed or initialled on each page by the testatrix, Eileen Margaret Duffus, and by two witnesses, Ronald Edward Boxall and Joan Valda Boxall. It is dated 28 March 2011. Ms Duffus died on 31 January 2022. The instrument purports to appoint the applicants as executors and trustees. They are the children of the deceased.
- [2]On the final and fourth page of the document are the signatures of the two witnesses attesting to the fact that it was signed by the testatrix in their presence and witnessed by both of the witnesses in her presence and in the presence of each other. However, the provision where the testatrix would execute the instrument remains unsigned. The absence of the testatrix’s signature next to the provision intended to be the formal signing and execution of the instrument means that the instrument does not comply with the provisions of s 10 of the Succession Act 1981 (Qld). The instrument bears the testatrix’s signature on the other pages and her initials on the final page. In each place her signature or initials are attested to by the signatures or initials of the two witnesses.
- [3]The document plainly purports to state the testamentary intentions of the testatrix. From an examination of the document itself and the evidence of the two witnesses, I am satisfied that the testatrix intended the document to form her Will and did not want to make any changes to that document other than the date which she changed and initialled in the presence of the two witnesses. The document describes itself as the last Will and Testament of the testatrix. All matters that are ordinarily dealt with in a Will have been dealt with in the document. I am satisfied that the absence of the testatrix’s signature at the signing clause on the final page of the instrument does not indicate that she had any intention to invalidate the document.
- [4]In the circumstances, it is appropriate to make an order pursuant to s 18 of the Succession Act.
- [5]Subject to the formal requirements of the Registrar, the instrument should be admitted to probate in common form. The applicants should be the executors and trustees of the Will. The costs of the application should be met from the Estate.