In the Will of Peter Hamilton Boyle
[2022] QSC 178
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- Unreported Judgment
- In the Will of Peter Hamilton Boyle[2022] QSC 178
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In the Will of Peter Hamilton Boyle[2022] QSC 178
In the Will of Peter Hamilton Boyle[2022] QSC 178
SUPREME COURT OF QUEENSLAND
CITATION: | In the Will of Peter Hamilton Boyle [2022] QSC 178 |
PARTIES: | ALLISON MAREE BOYLE (applicant) v DEBORAH JOY JAENSCH (respondent) |
FILE NO/S: | SC No 350/22 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court at Rockhampton |
DELIVERED ON: | 30 August 2022 |
DELIVERED AT: | Rockhampton |
HEARING DATE: | 5 August 2022 |
JUDGE: | Crow J |
ORDER: |
|
CATCHWORDS: | SUCCESSION – MAKING OF A WILL – EXECUTION – INFORMAL DOCUMENT INTENDED TO BE A WILL – GENERALLY – where the deceased executed a formal will – where the deceased subsequently handwrote a document that did not meet the requirements of a formal will pursuant to s 10 Succession Act 1981 (Qld) – where the informal will was located after the death of the deceased – where the applicant is applying for a declaration pursuant to s 18 Succession Act 1981 (Qld) that the informal will of the deceased is their last will and testament – where the respondent submits a lack of evidence as to the deceased intention to satisfy s 18 Succession Act 1981 (Qld) – whether the court may dispense with the execution requirements for the informal will and declare it the last will and testament of the deceased. Succession Act 1981 (Qld), s 18 Lindsay v McGrath [2016] 2 Qd R 160 |
COUNSEL: | P Coore for the applicant A Arnold for the respondent |
SOLICITORS: | South Geldard Lawyers for the applicant RK Law for the respondent |
- [1]On 1 June 2022, Allison Maree Boyle applied for a declaration pursuant to s 18 of the Succession Act 1981 (Qld) (‘Succession Act’) that the informal will of her late father, Peter Hamilton Boyle (‘Mr Boyle’), was the last will and testament of Mr Boyle. Allison Boyle has also applied for letters of administration to issue to herself as administrator of that last and informal will.
- [2]Mr Boyle passed away on 17 February 2020 in Rockhampton aged 81 years. Mr Boyle had married Enid Mary McKeague in Rockhampton and the marriage lasted for some 24 years. There were three children of the marriage, Mark Peter Boyle, Melissa Anne Boyle and Allison Maree Boyle. Following separation from Enid McKeague, Mr Boyle commenced a relationship with Deborah Joy Jaensch.
- [3]Deborah Jaensch was Mr Boyle’s partner for a period of 36 years prior to his death on 17 February 2020. Mr Boyle was a business owner and one business conducted by him was called Scientific Roof Technology.
- [4]Mr Boyle’s son, Mark Boyle, suffers from motor neuron disease. This has severely impacted his physical capacity but does not affect his mental capacity. Mark Boyle is well cared for by his mother at her house in Rockhampton and by a National Disability Insurance Scheme funded carer Mark Svensen. Nonetheless, the evidence suggests that, should he wish to, Mark Boyle would be able to establish that he is a person in need if he wished to bring an application for further and better provision of the estate.
- [5]Mark Boyle has, however, signed an acknowledgement and consent in support of the application brought by his younger sister.[1] Ordinarily, without the receipt of independent legal advice as to his rights under s 41 of the Succession Act Mark Boyle’s consent would carry little weight. However, the circumstances in this case favour a determination of the dispute between the applicant and the respondent despite Mark Boyle’s difficult circumstances.
- [6]Mr Boyle’s estate is not large, although its precise value is not known. As explained by Deborah Jaensch, the deceased did not like banks and kept his valuable assets within a safe on his business premises.[2] There is a sum of some $40,000 of cash, an unvalued amount of gold bullion (not a particularly large amount), some forklifts, cars, a light plane, as well as a business premises which is extremely dilapidated.
- [7]Deborah Jaensch, who is also the accountant for Mr Boyle, has deposed the estate as having creditors of approximately $190,000.[3] Although it is not precise, the conclusion I have drawn from the available financial information is that the estate is a small estate, and is possibly an estate which has negative equity.
- [8]It is important in all estates that executors act efficiently to carry out their lawful functions, however, it is particularly important in small estates where delay may cause costs to increase to a point where there is little left in the estate.
- [9]On 1 September 2016, Mr Boyle executed a document, being a will form. The document, which may be described as the will of 1 September 2016, was witnessed by two independent witnesses as required.[4] The will is said to be the will of “Peter Hamilton Boyle of the House of Boyle of not the CQV[5] Trust Peter Hamilton Boyle …”. By the will, Mr Boyle appointed a Mr John Bain of Adelaide to be one executor, Deborah Jaensch, his de facto, as the co-executor, and appointed a Mr Jack Barnes as an executor if Mr Bain or Ms Jaensch did not outlive Mr Boyle or were unwilling to accept appointment as executor or incapable of acting as executor.
- [10]The will of 1 September 2016, which did not deal with the residuary estate, made special gifts as set out on a list. The handwritten list is difficult to decipher, other than for the gifting of the gold and silver equally between Deborah Jaensch and Mr Boyle’s three children.
- [11]The respondent, Deborah Jaensch, submits that the will of 1 September 2016 ought to be propounded and that she ought to be appointed as the administrator of the estate.
- [12]It is important to record that the day after the will of 1 September 2016 was signed, Mr Boyle departed for a 21-day trip to France. On 1 September 2016 at 9:49pm, Mr Boyle sent a copy of his itinerary for the France trip to his daughter, the applicant Allison Boyle, showing a departure from Rockhampton at 7:45am on Friday 2 September 2016.
- [13]On 5 or 6 October 2017, Mr Boyle and Allison Boyle had a telephone conversation in which Mr Boyle informed Allison that he and his partner Deborah were planning to go on a holiday to Japan.[6] Allison Boyle recalls she said words to her late father to the effect of “You need to get your affairs in order” to which Mr Boyle replied, “Jack Barnes knows what to do”.[7]
- [14]Allison Boyle received an email from her late father on 6 October 2017 at 4:44am.[8] The email records “Allison I am in Japan tomorrow until 21 sat (Love you) Regards, Peter Boyle.” This email strongly supports the acceptance of Allison Boyle’s evidence that her conversation with her late father on 5 or 6 October 2017, in which she enquired if her father had his affairs in order and Mr Boyle’s response of “Jack Barnes knows what to do”, is of particular significance.
- [15]After Mr Boyle passed away, Allison Boyle and Melissa Boyle attended at Mr Boyle’s business premises located at Wharf Street, Rockhampton. Whilst at the premises, Melissa Boyle found an envelope which is exhibited to Allison Boyle’s affidavit.[9] The envelope, which was later opened, had in Mr Boyle’s handwriting the words “Mr Jack Barnes – Only to be opened upon my being deceased or missing. Peter H. Boyle.” On the reverse side of the envelope were the words “To Be Held at Office PHB.”
- [16]Inside the envelope is a handwritten document (the informal will) which I accept to be handwritten by the deceased, and records as follows:
![In the Will of Peter Hamilton Boyle [2022] QSC 178](/judgmentview/image?name=357109.001.jpg&id=357109)
- [17]The document is signed Peter H. Boyle over a seal which reads “The Seal of the Commonwealth Public Officer”. On the left-hand side of the document, there is the words “Witness Sue.” And then a line, and then the word “Sue” and then a further line. I accept Allison Boyle’s evidence that the document is in the handwriting of her late father Mr Boyle.[10]
- [18]I also accept the evidence of Allison Boyle that the person said to be a witness, Sue, is written in Mr Boyle’s handwriting.[11] The best inference is that the reference to “Sue” was a reference by Mr Boyle to his long-term employee, Susan May Izzy. Susan Izzy denies that she signed the informal will of Mr Boyle[12] and it is plain that the person who wrote “Sue” twice under the word “Witness” was Mr Boyle.
- [19]Section 18 of the Succession Act provides:
18 Court may dispense with execution requirements for will, alteration or revocation
- (1)This section applies to a document, or a part of a document, that—
- (a)purports to state the testamentary intentions of a deceased person; and
- (b)has not been executed under this part.
- (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)In making a decision under subsection (2), the court may, in addition to the document or part, have regard to—
- (a)any evidence relating to the way in which the document or part was executed; and
- (b)any evidence of the person’s testamentary intentions, including evidence of statements made by the person.
- (4)Subsection (3) does not limit the matters a court may have regard to in making a decision under subsection (2).
- (5)This section applies to a document, or a part of a document, whether the document came into existence within or outside the State.
- [20]In Lindsay v McGrath [2016] 2 Qd R 160 at [55] and [62] Boddice J, with whom Gotterson JA agreed, said:
“[55] Section 10 of the Act sets out the requirements for the execution of a valid Will. Relevantly, those requirements include that the signature of the testator be made or acknowledged in the presence of two or more witnesses, present at the same time, who must also attest and sign the Will in the presence of the testator. There is, however, power for the Court to dispense with these execution requirements.
[…]
[62] 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.”
- [21]With respect to the three requirements to found an informal will under s 18 of the Succession Act and as explained in Lindsay v McGrath, I find that there was a document and that the document did purport to embody the testamentary intentions of Peter Hamilton Boyle. I further consider, in terms of the third requirement, that the words or acts of Mr Boyle in creating the document entitled “Last Will and Testament” and his writing of the witness’s name “Sue” twice on the document is an act that demonstrated it was then his intention that the subject document would, without more on his part, operate as his will.
- [22]I accept the evidence of Allison Boyle that her late father, Mr Boyle, was the type of person who left matters to the last minute, and that such an act is consistent with Mr Boyle creating his last will and testament prior to his holiday in Japan, just as he had prior to his holiday in France.[13]
- [23]The conversation that Allison Boyle had with her father is also of some significance insofar as Mr Boyle said to his daughter Allison “Jack Barnes knows what to do” in response to the statement “You need to get your affairs in order.” The words “Jack Barnes knows what to do” together with the document appointing Jack Barnes as the executor and the handwritten instruction of the letter containing the document being addressed to Jack Barnes and “Only to be opened upon my being deceased or missing” together with the words on the reverse of the envelope “To be held at my office PHB” shows that it was Mr Boyle’s intention for the document, his last will, to be held at his office and to be opened by Mr Barnes upon Mr Boyle’s passing.
- [24]The phrase “Jack Barnes knows what to do” is consistent with the late Mr Boyle having created the document prior to his telephone conversation with his daughter Allison Boyle. That, in terms of s 18, is sufficient words said at some later time demonstrating that it was Peter Hamilton Boyle’s then-intention that the subject document would, without more on his part, operate as his will.
- [25]I therefore declare pursuant to s 18 of the Succession Act that the informal will is the last will of the deceased Peter Hamilton Boyle. I further order, subject to the formal requirements of the Registrar, that letters of administration with the will issue to the applicant Allison Maree Boyle as administrator.
- [26]In order to reduce costs in this small estate, I order that in the event that the applicant and respondent cannot agree appropriate costs orders within 7 days hereof, that the respondent file and serve short submissions upon costs within 14 days hereof and that the applicant file and serve short written submissions upon costs within 21 days hereof. Any further necessary decision upon costs will be made upon the papers.
Footnotes
[1] Exhibit D to the Affidavit of Mark Kerry Svensen filed 20 July 2022 (Court doc 22).
[2] Affidavit of Debra Joy Jaensch filed 4 August 2022 (Court doc 26), at [19].
[3] Affidavit of Debra Joy Jaensch filed 4 August 2022 (Court doc 26), at [22].
[4] Exhibit “G” to the Affidavit of Allison Maree Boyle filed 22 March 2022 (Court doc 9).
[5] Presumably “cestui que vie”, meaning “he who lives” or “beneficiary”.
[6] Affidavit of Allison Maree Boyle filed 22 March 2022 (Court doc 2), at [14]; Affidavit of Allison Maree Boyle filed 5 August 2022 (Court doc 29), at [8].
[7] Affidavit of Allison Maree Boyle filed 22 March 2022 (Court doc 2), at [15].
[8] Exhibit “E” to the Affidavit of Allison Maree Boyle filed 22 March 2022 (Court doc 7).
[9] Exhibit “F” to the Affidavit of Allison Maree Boyle filed 22 March 2022 (Court doc 8).
[10] Affidavit of Allison Maree Boyle filed 22 March 2022 (Court doc 2), at [22].
[11] Affidavit of Allison Maree Boyle filed 22 March 2022 (Court doc 2), at [23].
[12] Affidavit of Allison Maree Boyle filed 22 March 2022 (Court doc 2), at [25].
[13] Affidavit of Allison Maree Boyle filed 5 August 2022 (Court doc 29), at [6].