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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:

  1. Pursuant to section 18(2) of the Succession Act 1981 (Qld), the document purporting to be the Last Will and Testament of Eileen Margaret Duffus dated 28 March 2011 forms the Will of Eileen Margaret Duffus (deceased).
  2. Subject to the formal requirements of the Registrar, the document referred to in Order 1 above be admitted to probate in common form with the applicants as executors and trustees of the Will of Eileen Margaret Duffus (deceased).
  3. The applicants’ costs of this application be met from the Estate of Eileen Margaret Duffus (deceased). 

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. [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. [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. [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. [4]
    In the circumstances, it is appropriate to make an order pursuant to s 18 of the Succession Act
  5. [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.
Close

Editorial Notes

  • Published Case Name:

    In the Will of Eileen Duffus deceased

  • Shortened Case Name:

    In the Will of Eileen Duffus deceased

  • MNC:

    [2022] QSC 149

  • Court:

    QSC

  • Judge(s):

    Bradley J

  • Date:

    19 Jul 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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