Shaw v Tane[2022] QSC 301

SUPREME COURT OF QUEENSLAND

JACKSON J:

1. [1]
   On 1 December 2020, Martin Tullemans, a well-known surf photographer from the 1970s, died. 
2. [2]
   His sister, Maria Shaw (“Mary”), is the plaintiff in this proceeding.  She seeks a grant of probate in solemn form of a will dated 18 October 2019 (“2019 Will”).^[1]  Tamar Tane, the daughter of Martin’s deceased former partner, Barbara, is the defendant and cross-claimant.  She disputes the validity of the 2019 Will and propounds a will dated 6 May 2013 (“2013 Will”).  It is convenient to refer to relevant persons by their given names.
3. [3]
   The 2013 Will appoints Tamar as executor and bequeaths Martin’s entire estate to Tamar and her three siblings in equal shares as tenants in common.  The 2019 Will leaves $50,000 to Tamar to divide between her siblings as she deems fit, $50,000 to Martin’s brother Frank and the residue to Mary. 
4. [4]
   From about 2016 to early 2020, Martin lived in a cabin at Kirra Beach Tourist Park. Two doors down lived Deborah Phillips (“Deb”), whom Martin first met in the 1980s. Deb purportedly witnessed the 2019 Will on 18 October 2019.  Martin’s father, Petrus Tullemans, or “Opa” as he was referred to by his kin, is the other purported witness.

5. [5]
   The 2019 Will is constituted by handwriting on a pro forma fold out page contained within a will kit titled “Prepare-Your-Own Legal Will Pack”.  Martin’s signature is purportedly inscribed where the page folds upon itself.  The handwriting on the 2019 Will is for the most part that of David Shaw, Mary’s son, who gave evidence that he was present and transcribed Martin’s instructions on the will on 18 October 2019, after which Martin, Deb and Petrus signed it. 
6. [6]
   Also said to be signed by Martin, Petrus and Deb on 18 October 2019 is a typed document on a letterhead Martin apparently used for his surf photography business, which reads:

“List of assets, my personal goods are to be sold or donated or exhibited , my cabin and car added to bank a/c, my personal items should be close to nil at my passing. I will place this will in my safe.

This is to be read only if the will is contested. I have written this as it is the right thing to do, it is completely of my own free will, I am good [ I drive to brisbane, I sell photos/slides,etc, I plan on my calender etc.] My fathers money might be part of this will, so it is important that I make my intentions clear.

Frank my estranged brother is financially loaded. He is retired his 2 children both are in well paid jobs with no grandkids. Frank has a history of plotting and scheming . He extorts every cent he can from situations. His conduct with my brother Gerries estate was a shocker he made me do all the hard work & clearing of junk and then wanted my money for it. He also tried to rob my sister of my fathers will by fabricating a case at a lawyer on her, years ago. $50,000 is far more than he ever deserves as he doesn't need the money at all; and he is an "arshole".

Mary my sister is a nurse, and she supported my father at her home . This saved his estate more than $700 a week from nursing home fees for years. Mary deserves help and she has 2 children that would benefit greatly from financial help for housing and educational needs. This in turn would also assist her 3 grandchildren. Mary helped me with my bipolar for over 40 years of my life.

I will give Tamar $50,000 to share between her siblings, because I definately do not want 1 cent to go to the courts. Please take heed! I know I was misused by them after they moved from New Zealand. I was taken advantaged of well and truly. I owe them nothing. It would teach them the wrong message if they get rewarded with any more. Barbra their mother and I broke up on and off, for periods accruing to over half of the 2+ year period we shared house. I have diary entries to exlain how I felt. Although Tamars lot are not family, I know I am not really big in their life. I could not really rely on them if needed and have been disconnected from them for periods of time unless there is something in it for them.

I know cause and effect by writing this will; meaning, 1 know that I must right a wrong to my family, Mary. Frank is only included because he will clog up the courts and be his usual arsehole self. The reason my family is estranged from Frank for years is that his plotting and excluding is a big problem to me and my father and his bulling of Mary was off the scale. I have had no mania from my bipolar for the last 2 years as now. As I am a bit of a horder, It will be a more than massive task to sell my place, due to the fact I have so much junk, ants, cockroaches, etc.

Written by Martin Joseph Tullemans on 18/10/2019 . DOB 12/03/1952.”

(“Letter of Wishes”)^[2]

7. [7]
   The validity of the 2013 Will when made is not in dispute.  The question is whether it has been revoked by the 2019 Will.^[3]  That question turns on whether the 2019 Will was validly executed^[4] and, if not, whether it was a document that Martin intended to form his will.^[5]

Mary’s case

8. [8]
   Mary gave evidence herself and called evidence from David and her husband of 43 years, Michael Shaw (“Mike”), regarding how the 2019 Will was created and found.  
9. [9]
   David was the only witness who said he was present when the 2019 Will and Letter of Wishes were signed.  His evidence can be summarised as follows.
10. [10]
    On or about 4 October 2019, David visited Petrus’s flat, which was downstairs at Mary and Mike’s home.  He saw Martin typing a letter on Petrus’s computer with Petrus nearby.  The suggested inference is that it was a draft of the Letter of Wishes. 

11. [11]
    On 18 October 2019, David drove Petrus from Brisbane to Martin’s cabin at Kirra Beach.  Deb arrived sometime later.  After David, Petrus and Deb went inside the cabin, Martin pulled out a card table and two chairs.  There were two pens on the table.  Martin then said words to the effect of “I’d like to do my will” and asked David to transcribe his words.
12. [12]
    David said that all handwriting on the 2019 Will was his, except for:

1. (a)
   in paragraph two, the initials “DP” and “PT” next to an amendment of Mary’s middle name from “Bernadine” to “Bernadina”; and
2. (b)
   in the execution block:

1. (i)
   the signatures of Martin, Petrus and Deb, all of whom David said he saw sign the document;
2. (ii)
   Deb’s name and address, which, it is not disputed, Deb wrote;
3. (iii)
   above where provision is made to insert the date, the initials “MT”, “DP” and “PT”; and

4. (iv)
   the crossed-out number or numbers directly above Martin’s signature.

13. [13]
    As to the last of these exceptions, David said that Martin began to write the date, crossed it out and David then wrote the date anew.  David also said that Martin initially signed the 2019 Will using a different pen to the one David used and then slowly went over his signature with the pen David used.  Whether this occurred before or after Martin attempted to write the date is unclear.  It is convenient to canvas the details of these matters later.
14. [14]
    Turning to the Letter of Wishes, David said that after the 2019 Will had been signed, he walked to the kitchen to make a cup of green tea.  From the kitchen, he overheard Martin reading out the content of the Letter of Wishes.  David said in evidence that he saw Martin, Petrus and Deb sign the document. 
15. [15]
    Martin then said something to the effect of “I have made the will and I’m going to put it in my safe in an envelope that says ‘powderkeg’ on it” and told David not to tell anyone about it until after he had died. 
16. [16]
    Mary and Mike gave evidence that they found the 2019 Will.  On 30 April 2020, while Martin was in hospital, they were cleaning out his cabin.  Mike found a safe.  He showed Mary and she said that a few days earlier, she had seen a laminated sheet with numbers on it.  Mike entered those numbers on the keypad and the safe opened.  Inside the safe was a green envelope with “powderkeg” written on it.  They opened the envelope and found the 2019 Will and the Letter of Wishes.  They had a quick look, Mike gave the documents to Mary, Mary put them in a cupboard, and they continued cleaning. 

Tamar’s case

17. [17]
    Deb was the only witness Tamar called.  She gave evidence that she has never met Petrus and that she only met David in late December 2020.  She said she was not present when either Martin or Petrus signed the 2019 Will.
18. [18]
    Deb said that in November 2020, Mary and Mike were staying at Kirra Beach Tourist Park and invited her over for dinner.  Mary asked Deb to “sign a document for Martin” and placed the document in front of her.  Deb said she signed it without reading it.  She also wrote her name and address.  She said she did not realise she had signed a will.  She also denied signing the Letter of Wishes.  
19. [19]
    It is at this point necessary to examine the other facts and events surrounding the execution and finding of the 2019 Will.  No relevant event occurs between 18 October 2019 and 3 April 2020.

The photo authorities 

20. [20]
    According to David, in the morning of 3 April 2020, he took Petrus to see Martin at his cabin.  Martin said to Petrus that he was unhappy with what was happening with his photos and that he wanted to sort it out.  He asked Mary to transcribe his wishes. 
21. [21]
    There are two documents in evidence ostensibly from this date.  The first reads: 

“I authorize Maria B. Shaw 12-8-58 to keep my photos & images safe; I give exclusive rights to her in all formats. She is to exhibit it at her discretion.”

(“First Authority”)

The second reads:

“I authorize Maria B. Shaw 12-8-58 to keep my photo images safe. I give exclusive rights to her in all forms & to Exhibition it. Complete ownership of content property.”

(“Second Authority”) 

22. [22]
    Both appear to bear the signatures of Martin, Petrus and David.  Both were handwritten by Mary, except for the date on the Second Authority next to David’s name, which David and Mary said David wrote.  I will return to the importance of the signatures on the Second Authority.
23. [23]
    The only relevant difference between the two Authorities is the final sentence of the Second Authority.  David gave evidence that the Second Authority was drafted because Martin was unhappy that the First Authority did not address “content property”.
24. [24]
    A little oddly, there is another similar authority in evidence.  It was made on Christmas Day 2017 (“Christmas 2017 Authority”).  It is a typed document that bears the signatures of Martin, Petrus and David.  It reads: 

“I authorize my sister Maria Shaw dob 12.08.1958 to keep my images safe. Keep Frank the areshole away. Keep the highway moochers from NZ away. I give exclusive rights to her in all formats. She may exhibit it. It Will be historically relevant,I have instructed her what to do. She may keep any funds she makes from it after I am not here.”

25. [25]
    Why the two Authorities dated 3 April 2020 were necessary if the Christmas 2017 Authority existed already is not apparent.  Another feature of the Christmas 2017 Authority is that it bears the date “25/12/18”.  Mary said that she erroneously added that date in January 2021.  She was not present when the document was signed.

The meeting with the solicitor about the power of attorney 

26. [26]
    On 3 April 2020, apparently after the First Authority and the Second Authority were signed, Mary and Mike took Martin to see a solicitor about appointing them as his attorneys.  Mary had printed out the enduring power of attorney form before they left.  After they arrived at the solicitor’s office, the solicitor called Martin in.  She then called in Mary and sometime later Mike.
27. [27]
    At the end of the appointment, with all of them in the room, the solicitor brought out the 2013 Will and put it on the table.  This was when Mary and Mike first became aware of the 2013 Will.
28. [28]
    The solicitor took a file note during the meeting.  The following extracts are relevant:

“ - Although Martin appeared a little confused with how long he had lived at Kirra (3 years not 3 months) and his birth year, he appeared to understand that he was appointing Mike and Mary to look after both his financial and p/h matters.

- Will held by Abbott & Co dated 6/5/13.

- Made after his de-facto partner passed.

…

- Advised me that he still sees Tamar on a regular basis but not so much the other children.

- Wishes to appoint Mike as his executor and if Mike is unable or unwilling then Mary.

- Was not sure what he wanted to do with his estate – said that he would need to give it some further thought and get back to me. Not sure if he still wants to leave it to all 4 children or some to Mike + Mary

- Advised that he would not proceed with a new Will until he could provide full and clear instructions.”

29. [29]
    The 2019 Will was not discussed during the meeting.  Mary’s counsel submitted that Martin’s reference to the 2013 Will in the meeting is explicable because he wanted to keep the 2019 Will a secret from Mary and Mike.  Why Martin would want that when Mary was the major beneficiary under the 2019 Will is not apparent.  But on Mary’s evidence, the 2013 Will was not discussed while she was in the room, it was only placed on the table.  Even if Martin was trying to keep the 2019 Will a secret from Mary and Mike, there was no reason for him to have kept its existence from the solicitor while they were out of the room.  And why Martin would involve his father and nephew in the process of creating a will he wanted to keep secret from his sister is also not apparent.

30. [30]
    Mary said in evidence that on the way home from the appointment, Martin said to her with reference to his will “don’t worry, it’s sorted.”  About five minutes later, he said “I want to give Tamar $20,000.”  Later, he said “I’m not sure whether to give them anything at all.” 

31. [31]
    At no time on 3 April 2020, or before or after that day, did Martin say to Mary or Mike that he had made the 2019 Will.
32. [32]
    On 8 April 2020, Mary rang the solicitor.  The solicitor took a file note as follows:

“ - Martin had a relapse over the weekend and is back in hospital.

- Not sure at this stage how it has affected his testamentary capacity.

- May no longer have capacity to make a new Will however she will keep us updated.

- Advised that apart from discussing a change to his executors, Martin was happy to leave the Will as it was at the time of his appointment.”

33. [33]
    Given that Martin had not told Mary about the 2019 Will, it was the 2013 Will that Mary advised the solicitor that Martin was happy to leave it as it was.  And that was after the conversation between Mary and Martin on the way home from the 3 April 2020 appointment with the solicitor.

35. [34]
    A fair inference at that point is that Martin was not aware of the 2019 Will.  Had he been aware of it, it is unlikely that he would not have told the solicitor about it or said that he was happy to leave the 2013 Will as it was.  However, it is possible that Martin had forgotten about the 2019 Will. 

Capacity Letter

35. [35]
    Mary said in evidence that on 1 May 2020, the day after she and Mike found the 2019 Will, she was in Brisbane.  She said that Petrus asked her to type a letter on his computer about Martin’s capacity because he was concerned that Tamar would contest the 2019 Will (“Capacity Letter”).  It seems unlikely that Petrus would raise that concern without telling Mary that he had witnessed Martin’s signature of the 2019 Will.  However, that too was Mary’s evidence.  It also seems unlikely that Mary did not raise the execution of the 2019 Will at the time with Petrus, given that it bore his signature as witness.  She also said that she had no direct conversations with Martin about the 2019 Will and that David had not told her he saw it being signed. 
36. [36]
    That evening, Mary said she returned to the Gold Coast and obtained Deb’s signature upon the Capacity Letter.  The letter appears to have Deb’s signature on it but, curiously, Deb denied signing it in evidence.
37. [37]
    Mary also said she had a conversation with Deb about the 2019 Will that evening.  She said that Deb said she was “pleased that [Martin] had asked her” to witness his will and that he had told her not to tell Mary about it. 
38. [38]
    Mary also said in evidence that Deb had a tear in her eye during this conversation.  Mary said that she wrote “tear” in her diary, as a reference to Deb’s tear.  The entry for 1 May 2020 says “Deb sign chat”.  Written directly below that is “Opa, tear”.  Mary gave evidence that the entry should in fact be read as “Deb, sign, chat, tear”.  I reject that evidence as a reconstruction designed to bolster her case.  In an entry on 30 April 2020, Mary has written “Opa blood leg skin tear”.  The “Opa, tear” entry appears to be a reference to Petrus’s skin tear.

39. [39]
    The date of the Capacity Letter was handwritten by Mary.  Because Mary admitted to inserting the date of the 2017 Christmas Authority after the fact, I consider that other dates written by Mary should be treated circumspectly, including this date.

Other events after 30 April 2020

40. [40]
    At some point after 30 April 2019, while cleaning Martin’s cabin, Mary said in evidence that she found blank copies of his letterhead.  They were identical to that on which the Letter of Wishes is typed.  She said she also found Martin’s 2019 calendar. “DAD” is written in the squares of 4 October 2019 and 18 October 2019, in what appears to be Martin’s handwriting. 

41. [41]
    On 9 May 2020, Petrus died.  Mary is the joint executor of his estate.  Petrus bequeathed $25,000 to Frank.  Mary, Martin, Frank and their brother Gerard were the beneficiaries of the residue in equal shares as tenants in common.  In bringing this proceeding, Mary was aware that Martin’s estate is a beneficiary under Petrus’s will.
42. [42]
    On 22 May 2020, Martin was living at a nursing home at Coolangatta.  Mary recorded a video of him on her phone.  The first question she asked him was: “Say who you are, Martin?” to which he responded: “20,000 to Tamar”.  Martin appears to have been ready to answer another question.  He did not pick up the question actually asked.  
43. [43]
    On 17 November 2020, Mary gave the 2019 Will to her solicitors.
44. [44]
    Mary, Mike and Deb all said in evidence that at some point in either November or December 2020 they had either dinner or drinks.  There is a dispute is as to when that occurred and what was said and done.  
45. [45]
    Deb said in evidence that at a dinner in November, she signed a document put in front of her by Mary and Mike, which she did not read but turned out to be the 2019 Will.  
46. [46]
    Mary and Mike both said in evidence that Deb came for drinks outside their caravan.  Mary said that was on or about 6 December 2020.  Mary and Mike both deny that they put the 2019 Will or any document in front of Deb and asked her to sign it for Martin. 
47. [47]
    If any dinner or drinks with Deb occurred in December, and not November, the 2019 Will could not have been signed on that date by Deb, because it was already with Mary’s solicitors from 17 November 2020.  
48. [48]
    There is little objective evidence as to the date when Mary and Mike met with Deb.  There is a text message from Deb to Mary on 5 December 2020 asking Mary to come around for a drink the following day.  Curiously, Deb denied sending this text message.  Mary said she had lost her phone records from before 1 December 2020.  
49. [49]
    There is also an image of a computer screenshot of a search of reservations under the name of “Shaw” at Kirra Beach Tourist Park, which shows that the only booking for Mary or Mike Shaw between 1 October 2019 and 30 December 2020 was from 8 to 11 November 2020.  But it was not put to Mary or Mike in cross-examination that they were not at the Kirra Beach Tourist Park on 6 December 2020.  
50. [50]
    On 7 January 2021, Mary sent a text message to Tamar.  A few extracts are relevant:

“… 

Martin wrote the will after lots of thought. He told me later he sought council from my father who he played great chess with each visit .

… 

He spoke about this will a lot  

… 

Martin said dad encouraged him to give you and Frank $50,000 each. 

…”

51. [51]
    On the evidence otherwise, those statements were untrue.
52. [52]
    Mary said in evidence that in late February 2021, she was walking past Deb’s cabin one afternoon, when she overheard Deb being asked by her brother to swear an affidavit saying the 2019 Will is invalid in exchange for money.  The occasion for the conversation, namely that Mary just happened to be walking past Deb’s cabin when she overheard the conversation, is incredible.  
53. [53]
    Mary also said in evidence that there were further conversations between Mary and Deb, on 3 March 2021, when Deb told Mary that she had been asked to swear a false affidavit, and on 15 March 2021, when Deb told Mary that “she’s sick of them pressuring her”.  I reject Mary’s evidence about these conversations.  They are implausible.
54. [54]
    Turning to Mary’s evidence more generally, she at times appeared more interested in arguing her case and attempting to fill any gaps in her story than in providing real evidence.  In addition to the examples already outlined and some points mentioned below, Mary struck me as a disingenuous witness.  Accordingly, I treat her evidence with care unless it is supported by objective evidence. 
55. [55]
    Mike’s evidence was similar to Mary’s evidence.  He is an interested party who struck me as being willing to support his wife of 43 years come what may and in circumstances where I have rejected the uncorroborated evidence of his wife, his evidence should be treated with the same care. 

Assessment of the witnesses to the 2019 Will

56. [56]
    Consideration of the reliability of any witnesses to the execution of the will is necessary.^[6]  Here there are two witnesses of that kind: Deb, who ostensibly was a formal witness; and David, who helped in the preparation of the will and was present throughout the alleged execution.
57. [57]
    David’s evidence, if accepted, would establish: first, that Martin drafted the Letter of Wishes on or about 4 October 2019; and second, that the 2019 Will was duly prepared and executed on 18 October 2019.
58. [58]
    As to the Letter of Wishes, its text and form raise a number of questions.  
59. [59]
    First, one part provides: “[Mary] supported [Petrus] at home. This saved his estate more than $700 a week from nursing home fees for years”.  If this sentence was drafted in October 2019, why does it refer to the estate of a man who did not die until May 2020? [60] Second, another anomaly is that Barbara’s name is incorrectly spelled as “Barbra”.  Perhaps that was a mere typographical error.  However, Mary wrote another document in which Barbara was mis-spelled “Barbra” whereas a handwritten document written by Martin spelled Barbara correctly a number of times. 

61. [61]
    Third, there is a typing quirk, where a full stop or punctuation mark is preceded by a space between the last word and the mark.  In the Letter of Wishes, it occurs six times. This seems to be something Mary does too.  In a text message she sent to Tamar in January 2021, Mary typed: “there it was in an envelope , (in Martin style ). The envelope said powderkeg on the outside .”.  There are other examples of this idiosyncrasy in that same text message. 

62. [62]
    Fourth, the word “arshole” is placed within quotations marks in the Letter of Wishes.  Martin seems to have used that word to describe his brother Frank on other occasions.  But there was no apparent reason to put it within quotation marks. 
63. [63]
    Fifth, Tamar and her family are referred to in the letter by saying [Martin] is “not really big in their life”.  This is a little inconsistent with the solicitor’s file note on 3 April 2020 of Martin saying he still sees Tamar regularly.
64. [64]
    Last, while the Letter of Wishes is drafted on Martin’s letterhead it is not disputed that Mary found blank copies of the letterhead while cleaning out Martin’s cabin. 
65. [65]
    In addition to these questions, David affirmed two affidavits in this proceeding on 8 November 2021 and 13 January 2022.  That Martin typed a draft of the Letter of Wishes on or about 4 October 2019 was not referred to in either affidavit.
66. [66]
    When these questions are considered in combination, I am not satisfied that the Letter of Wishes was drafted by Martin in October 2019.  On that basis, I reject David’s evidence that he saw Martin typing the Letter of Wishes or saw it being executed on 18 October 2019.  Once that evidence is rejected, the balance of his evidence must be treated with great care, unless it is undisputed or corroborated by independent evidence.
67. [67]
    Deb was one of the ostensible witnesses to the 2019 Will.  The other was Petrus, who died on 9 May 2020.  Deb denied signing the 2019 Will as a witness in the presence of Martin or Petrus or David.  Her evidence was that she signed a document in November 2020, put in front of her by Mary and Mike, on the dinner or drinks occasion previously mentioned.  As a starting point, she was an apparently disinterested witness.  Having rejected Mary’s evidence as to Deb’s motivation to give false evidence, no credible explanation or readily inferable reason appeared as to why she would give evidence that was anything less than truthful.  
68. [68]
    However, when cross-examined, her evidence about whether the document she signed was one page or more, and whether none, one or both alterations or additions on the document were initialled by her, appeared false.  She also denied sending several text messages despite objective evidence showing she sent them.  When a number of documents were shown to her that appeared to bear her genuine signature, she denied signing all of them.  She also did not offer any credible explanation for how she did not realise the document she had signed, initialled in places and wrote her name and address on, was a will.  This was despite the sentence “[t]his is the end of my Will” appearing directly below her handwriting and a sentence beginning with “[t]his Will was signed by the Testator/Testatrix in the presence of both of us as witnesses” appearing directly above it.
69. [69]
    Overall, I find that her unrealistic challenges to objective facts call into question the reliability of her evidence to the extent that I should only accept it where it is corroborated by independent evidence that is accepted.

Physical features of the 2019 Will and handwriting evidence

70. [70]
    A distinct oddity of the 2019 Will is the date written in the execution block.  The pro forma execution block says “signed and dated this ____ day of ______ 20__”, leaving the writer to insert the day, the month and the last two numbers of the year.  There were two distinct attempts to write the day on the 2019 Will.  The first has been crossed out but appears to have initially been a “7” before being changed to an “8” and then a “9”.  David said in evidence that this attempt was written by Martin and denied that it was ever a “7”, saying instead that he thought Martin was going to draw a box around the “8”.  According to David, Martin scrubbed that number out and David then wrote the second attempt at inserting the day.  The second attempt has the word “18^th” but appears to have originally been “19^th”.  David’s evidence is that he wrote “19^th” because he was thinking about the year being 2019, which meant he had to change the “9” to an “8” upon realising his error.  David said that is why he did not simply add a “1” before the earlier written “8” to change “8” to “18”.  
71. [71]
    The result of these amendments is a clumsily written date.  On one hand, this could suggest that the date was changed at some later time, perhaps to match when Martin had scheduled a meeting with Petrus in his calendar.  On the other hand, if the document were inauthentic, it would be strange for the drafter to make errors of this kind, especially errors that necessitate the inscription of more initials.  In any event, this abnormality, combined with the document being written almost entirely by David, not Martin, raises suspicion.  
72. [72]
    The next questions are whether Martin signed the 2019 Will and if so, whether it was otherwise completed when he signed it, and if so, whether those positive findings would be sufficient to remove the suspicions raised.
73. [73]
    On its face, Martin’s signature has clearly been traced over or touched up.  That is not in dispute.  David said in evidence that after he had otherwise completed the 2019 Will with one pen, Martin grabbed another pen and first wrote his signature.  He then grabbed the pen David used and slowly went over the first written signature, seemingly due to his belief that the same pen had to be used for the whole document.
74. [74]
    Three reports of forensic document examiner John Heath were tendered.  The first report concluded that Martin’s signature is a false signature completed using a method of tracing whereby the writer has traced over a transmitted or hard copy image of a genuine signature in an attempt to have the tracing accepted as a genuine signature.  Mr Heath said that Martin’s signature on the 2019 Will is characterised by numerous stroke disconnections and there is substantial evidence of retouching line strokes. 
75. [75]
    Mr Heath was required by order of this Court to provide a supplementary report addressing whether Martin traced over his own genuine signature.  He disagreed with that proposition and reaffirmed his conclusion that the signature was a false traced signature, adding that the retouching appeared to be careful and painstaking and covered most of the overwritten signature.  In oral evidence, Mr Heath opined that the signature may have been covered to obscure or obliterate any evidence of an underlining.  The basis for this conclusion was that the trace had been done in numerous small strokes around letter constructions.  None of this is inconsistent with Martin painstakingly covering the signature to make it look like it was written with the same pen David used, however Mr Heath said that the painstaking tracing led to a fragmented covering that is inconsistent with his experience of how a genuine writer would trace their signature to darken or enhance it.

76. [76]
    In his further supplementary report, Mr Heath added that the design of the ‘M’, ‘T’, first ‘l’, ‘m’ and ‘a’ differ substantially from letter constructions one would expect to find in a genuine overwritten signature.  He also opined that the grey line present under the overwriting is a trace line rather than a light black ink signature.  
77. [77]
    Mr Heath does not, however, state the source signature that was used to trace the initial traced signature.  And he accepted that the physical effect of the signature being inscribed where the page is folded upon itself could result in a disjunct between the letters that are affected by that fold.  Here, the affected letters relevantly include the ‘M’, ‘T’ and first ‘l’, which were identified by Mr Heath as letters that differ substantially from their expected letter constructions.  
78. [78]
    From the samples of Martin’s signatures in evidence it appears that Martin’s signature was highly variable from time to time.  On some occasions he signed “Martin Tullemans” and on others he signed “M Tullemans”.  Some of the earlier signatures appear to be more fluid than those signed more recently.  It is difficult to make a positive finding one way or the other whether Martin signed the 2019 Will based on a comparison between the signature on the 2019 Will and his past signatures.  However, I need not positively find that the signature was forged, which was not alleged in Tamar’s defence; it is sufficient that I am not satisfied that Martin signed the 2019 Will.^[7]  Further, if Martin did sign the 2019 Will, having rejected David’s evidence unless it was otherwise supported, there is no objective evidence I accept about whether it was completed when he signed, which is a necessary prerequisite to a finding that by signing the document, he intended it to form his will.
79. [79]
    An allied or related question is whether Petrus signed the 2019 Will.  The claim does not plead this point, however, this was a point taken up by both counsel.
80. [80]
    Mr Heath gave evidence that Petrus’s signature on the Letter of Wishes is genuine, but that his signature on the 2019 Will is a false signature using a method of simulation, being a signature written after practising it numerous times.  Mr Heath’s first report explained that the signature on the 2019 Will is characterised by many disconnections and different letter formations to the genuine specimen signatures.  
81. [81]
    Mr Heath gave evidence orally and in his third report that the signature on the 2019 Will and the Second Authority were signed by the same person.  From my own analysis of the signatures in evidence, this appears to be a reasonable conclusion.  These two signatures say ‘P Tullemans’.  They are the only two signatures in evidence where Petrus did not use the abbreviated ‘P Tulle’ form of his signature.  Why a nongenuine signer might not use the abbreviated form of signature that Petrus seemingly otherwise used ubiquitously is not apparent.  Equally, why Petrus would not use the abbreviated form of signature is not apparent.  
82. [82]
    The evidence that Petrus’s signature on the Second Authority is genuine is from David, Mary and Mike.  Further, there are the peculiar circumstances surrounding the Authorities previously mentioned.  I also cannot positively conclude when the Authorities came into existence.  The consequence of these unexplained circumstances, combined with Mr Heath’s evidence that the 2019 Will and the Second Authority were signed by someone other than Petrus, is that I am not satisfied that Mary has discharged the burden of proving that Petrus’s signature on the 2019 Will is genuine.

Was the 2019 Will properly executed?

83. [83]
    Because Mary propounds the 2019 Will she bears the onus of proving that it is Martin’s will.^[8]  The consequence of my finding that I do not accept the uncorroborated evidence of David or Deb is that there is no objective evidence as to when Deb signed the 2019 Will, whether she signed it in the presence of Martin and whether Martin signed it in her presence.  As a result, Mary has not proved that the 2019 Will was duly executed.^[9]  The same consequence follows from my findings based on that evidence and the handwriting evidence – I am not satisfied that the 2019 Will was executed by Martin or witnessed by Petrus.
84. [84]
    Mary’s case then relies on the 2019 Will being an informal will, which requires a finding that Martin intended the document to form his will despite it not being executed correctly.^[10]

Did Martin intend that the 2019 Will be his will?

85. [85]
    The claim does not plead an informal will case, however, in oral submissions, Mary’s counsel specifically raised the possibility of defects in execution not being poisonous of Martin’s intention to make a will, which was a reference to s 18 of the Succession Act 1981 (Qld).  Tamar’s counsel may have acquiesced to this submission by making submissions on the point without raising that it was not pleaded.^[11]
86. [86]
    The relevant principles of law are longstanding.  In Barry v Butlin,^[12] Baron Parke detailed two principles:

“[T]he first that the onus probandi lies in every case on the party propounding a will and he must satisfy the conscience of the court that the instrument so propounded is the last Will of a free and capable testator.

The second is that if a party writes or prepares a will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased.”

87. [87]
    In Tyrrell v Painton,^[13] a case where, like here, the will in question was prepared by the son of the major beneficiary and person propounding it, Lindley LJ extended the second principle to all cases in which circumstances exist that excite the suspicion of the Court.  The question has been restated in the present statutory context as whether the evidence establishes that the testator by some act or words either at the time the will was brought into being or at some later time demonstrated that it was his intention that it should operate as his will.^[14]

88. [88]
    Unlike in many cases of this kind, Tamar does not directly raise the issue that Martin did not know and approve of the contents of the 2019 Will.^[15]  That is a matter that must be specifically pleaded under the Uniform Civil Procedure Rules 1999 (Qld).^[16] The pleading in fact only raises a due execution defence, specifically that Deb did not witness the 2019 Will or that Martin did not sign it or that neither Martin nor Petrus was present when Deb signed it.  However, Tamar’s counsel made oral submissions to defend the informal will case.

89. [89]
    The principle that a party propounding a will in circumstances that excite the suspicion of the court must remove the suspicion before the Court may pronounce in favour of the will is usually cited with reference to the requirement that the testator knows and approves of the contents of the will.^[17]  The principle has, however, been used in other contexts and the New South Wales Supreme Court, considering analogous informal will provisions to those before me, has required suspicious circumstances to be dispelled to find that a testator intended a document to form their will.^[18]  That approach is correct, in my view.  
90. [90]
    There is no reason in principle that the question whether suspicious circumstances have been removed should be limited to the element of knowledge and approval.  Its conventional use in that context is perhaps a consequence of Isaacs J’s statement in Nock v Austin, where the principles in Barry v Butlin and Tyrrell v Painton were accepted by the High Court.^[19]  In that case, the only issue before the High Court was whether the testator knew and approved of what he was doing.^[20]  There was no reason to discuss the application of the principle beyond that issue.  
91. [91]
    A suspicious circumstance surrounding a will may bring into question any element required for a will to be declared valid including whether it was duly executed, whether the deceased had capacity to make the will, the deceased’s testamentary intention and the deceased’s knowledge and approval of the content of the will.  Where the question of testamentary capacity was in issue, the High Court used similar language, speaking of a circumstance that “excites the vigilance of the Court”^[21] and the Supreme Court of Canada has adopted a wide field of operation of suspicious circumstances.^[22]  Barry v Butlin, the case often cited for the suspicious circumstances principles, does not limit the relevant judicial satisfaction to the deceased’s knowledge and approval of the will’s contents.  It requires judicial satisfaction that the grounds of suspicion have been satisfactorily removed so that the paper propounded expresses the true will of the deceased.^[23]

92. [92]
    Here, there are numerous circumstances surrounding the preparation of the 2019 Will that raise suspicion as to whether Martin intended the document to form his will and call for care to be taken before pronouncing in its favour.  
93. [93]
    First, it is written almost entirely by David, not Martin.  Second, it was found and propounded by Mary, who is the residuary and major beneficiary.  It may be that the specific distributions to others are consistent with an effort to prevent suspicion or litigation, as was Mary’s text message to Tamar sent on 7 January 2021.  Third, it is a substantial departure from the 2013 Will.  Fourth, the suggested accompanying Letter of Wishes has the suspicious physical features outlined previously.  Fifth, Martin had no expressed or apparent knowledge of the 2019 Will in the meeting with the solicitor on 3 April 2020 or the communication via Mary to that solicitor on 8 April 2020.  Sixth, there is no evidence of Martin discussing the 2019 Will with anyone after it was made.  Seventh, there remain significant unanswered questions as to the signatures and initials on the 2019 Will. 
94. [94]
    While it may be that none of these matters alone is conclusive, an approach of confining, and seeking an explanation for, each piece of circumstantial evidence should be eschewed in favour of a consideration of the circumstances in their totality.^[24]  Here, those circumstances together invoke a well-founded atmosphere of suspicion, which Mary has not satisfactorily removed. 
95. [95]
    Having not found positively that Martin signed the completed 2019 Will, there is an absence of sufficient objective evidence to remove the suspicions that are raised as to whether it contains his testamentary intentions.  There is no positive evidence that I have accepted that Martin, by some act or words either at the time the 2019 Will was brought into being or at some later time, demonstrated that it was his intention that the 2019 Will should operate as his will.  The ultimate question for the Court is whether the will propounded expresses the true will of the deceased and I am not satisfied that is the case for the 2019 Will.

Does the Letter of Wishes form a Will?

96. [96]
    Mary claimed, in the alternative, a grant of probate in solemn form of the Letter of Wishes and a declaration that the 2019 Will is incorporated by reference and forms part of the Letter of Wishes.  However, the terms of the Letter of Wishes are consistent with it being an adjunct to a will on terms akin to the 2019 Will.  It is not itself a document Martin intended to form his will.  This claim must fail.  

Conclusion

97. [97]
    The authenticity of the 2013 Will is not disputed.  As I have found that Mary has not proved that the 2019 Will is Martin’s last will, I must pronounce against its force and validity and pronounce in favour of the 2013 Will. 

ANNEXURE A