Re Ormerod[2022] QSC 98

SUPREME COURT OF QUEENSLAND

1. [1]
   BROWN J: Jacob Albert Ormerod (“Jacob”) died on 26 August 2021.  He was only 29 and died of cancer.  He was aware before his death that he had a terminal illness.
2. [2]
   An application is made by his mother, Susan Ormerod (“Susan”), for probate of an informal Will of the deceased dated 1 July 2021 to be granted to her as executor.
3. [3]
   The document concerned states that it is “the last Will and Testament” of Jacob Albert Ormerod and disposes of various items which were known to be his assets, but did not make provision of the residuary estate.  The document was initialled by Jacob beside a clause that was amended, which was also initialled by two witnesses.  The document was dated and witnessed by two witnesses but not signed by Jacob.  The document therefore does not satisfy the requirements for the execution of a valid Will pursuant to s 10 of the Succession Act 1981 (Qld) (“the Act”).
4. [4]
   The matter for determination of the court is whether s 18 of the Act applies such that the court can be satisfied that Jacob intended the document to form his Will.
5. [5]
   The evidence must establish on the balance of probabilities that the deceased wanted the particular document to be his Will and did not want to make any changes to that document.^[1]  Caution must be exercised in assessing the evidence provided.  I am conscious that the deceased’s mother is a potential beneficiary in that regard.
6. [6]
   There are three conditions which must be satisfied before an order can be made under s 18 of the Act.^[2] 
7. [7]
   The first condition is the existence of a document.  In the present case the document clearly purports to be Jacob’s last Will. 
8. [8]
   The second condition is whether the document purports to state the testamentary intentions of the deceased.  Testamentary intentions are intentions about what is to be done with a person’s property upon the person’s death.  This condition is satisfied.  The document shows that it represents the testamentary intentions of the deceased.  It sets out specific items of property and the people to whom they are to be given, which includes Jacob’s mother and girlfriend.
9. [9]
   Save for the lack of provision for the residuary estate, Susan, Jacob’s mother, has deposed to the fact that the Will sets out Jacob’s various assets.  There may be further assets which Jacob did not address.  Susan states that Jacob does have an entitlement to receive the balance held in his superannuation account and potentially to claim some unclaimed superannuation.  It is unclear whether they would form part of the estate or whether there is a nomination in existence in respect of the superannuation.  In any event, the fact that there is a partial intestacy does not prevent the court making the declaration sought.  Section 38 of the Act provides for such occasions. 
10. [10]
    The third condition is whether the deceased intended the document to form his Will.  In that respect, the question is whether the evidence satisfies the court that either at the time of the subject document being brought into being or at some later time, the relevant deceased by some act or words demonstrated that it was his intention that the subject document should without more on his part operate as his Will.^[3]  As was stated by Lyons J in Re: Yu,^[4] it is not sufficient that a document state the deceased person’s testamentary wishes.  To satisfy the requirements of s 18 of the Act, it must also be intended to be legally operative so as to dispose of the person’s property upon the person’s death.
11. [11]
    The following factors persuade me that this condition is satisfied: 

    1. (a)
       the document is a pro forma Will which states “This is the last Will and Testament”;
    2. (b)
       the document revokes all Wills and other documents of testamentary intent previously made by Jacob, and states it is his last Will and Testament;
    3. (c)
       it appoints Jacob’s mother, Susan, as his executor and trustee of his Will;
    4. (d)
       Jacob had told his mother, sister and girlfriend that he needed to make a Will and arrangements were made for a Justice of the Peace to attend his residence.  The affidavit of Robert Hogg (“Robert”), one of the witnesses to the document, stated that he had been asked by Robina Hospital Palliative Care to go to the house of Jacob Albert Ormerod to do home visits.  Robert is a Justice of the Peace;
    5. (e)
       the deceased had asked Mr Craig Arthur (“Craig”), the property manager of his building, to witness his Will prior to Robert’s visit.  He had attended upon Craig with Robert for the purpose of the Will being witnessed and had initialled one change which was witnessed, and;
    6. (f)
       the document had been completed by Jacob^[5] prior to Robert’s arrival in readiness for execution.
12. [12]
    As to whether I should infer the fact that Jacob did not sign his Will because he did not intend it to be his Will, the evidence does not support such an inference.  Robert stated that the deceased had already prepared his Will.  He said he skimmed the Will to see if there were any errors and noticed an error at the top of page two, which he advised Jacob would have to be initialled by him and witnessed.  He said to Jacob that there had to be two witnesses to the Will, to which Jacob said he had organised for the property manager to be the second witness.  Robert and the deceased went to the office of the property manager, where Robert explained how the Will had to be executed and the fact that the property manager could not be a benefactor under the Will.  Craig, the other witness, deposes to the fact that the deceased had asked him in advance if he would be one of the witnesses to his signature of the Will. Robert and Craig observed the deceased initial where he had crossed out an error on the top of page two, and both initialled it.  Rather surprisingly, neither of the witnesses noticed that Jacob had failed to sign the Will.  Given the steps taken, I infer it was most likely an oversight, as a result of the initialling of the amendment distracting the deceased and witnesses from ensuring the attestation clause was signed.
13. [13]
    Some corroboration of the fact that Jacob wished the Will to be the document to form his Will is that he had informed his mother and girlfriend that he was intending to prepare a Will.  He gave his mother some details of what his Will said, namely, to inform her of the fact that there were gifts to her and his girlfriend in his Will.  Susan stated that the deceased had told her that it was important for him to prepare a Will as he knew he was going to die.  Susan also states she had noticed that the deceased kept the signed Will in his car and advised him to put it somewhere safe.  Jacob’s sister and girlfriend have both deposed to retrieving the original document from his car after his death which is the subject of today’s application. 
14. [14]
    The fact he did not refer to his superannuation is not a matter to which I attach great significance in negating his intention that the document was intended to operate as his Will in the circumstances outlined above.
15. [15]
    There is a final issue as to Jacob’s capacity at the time he made the Will.  The presumption as to testamentary capacity does not apply as the Will was not executed in accordance with the requirements of s 10 of the Act.  However, there is some evidence supportive of his capacity at the time.  He had undertaken the exercise of listing his assets and to whom it was to be given in a rational way.  He organised the property manager at his building to be a witness to his Will.  He had conversations with his mother and girlfriend showing that he was sufficiently cognisant of the need for a Will and took steps to have one completed.  Robert also spoke to him about an Enduring Power of Attorney and the need for two witnesses to the Will, only to be told by the deceased he had organised the property manager to be a witness.  His Will was logical and rational in leaving his most significant assets to his mother and girlfriend.  He had little contact with his father such that his omission as a beneficiary was explicable.  He completed his Enduring Power of Attorney with Robert on the same day as the Will was witnessed.  Further, Susan has deposed to the fact she believed that Jacob had testamentary capacity.  There is no suggestion that Jacob’s terminal illness affected his cognitive ability.  In the circumstances, I am satisfied Jacob had the requisite testamentary capacity. 
16. [16]
    The application to apply for a grant of probate has been advertised in the Queensland Law Reporter and notice of intention to apply for the grant has been served on the Public Trustee. 
17. [17]
    Attempts were made to find Mr Stephen Finlay (“Stephen”), Jacob’s father, as a potentially interested party if there is a partial intestacy.  He could not be found.  Susan has deposed to the fact that she is aware that she and her former husband Stephen would be entitled to share in the residuary of his estate in the event that there is a partial intestacy.  Attempts to locate Stephen have been unsuccessful.  Susan separated from Stephen when Jacob was three years old, and she states he only saw the deceased occasionally.  She has had no contact with him for eight years.  Her daughter had had some contact with him but had advised her mother she has had no contact for about six years.  The solicitor’s attempts to locate him through a private investigator were also unsuccessful. 
18. [18]
    Susan is the nominated executor under the Will who will be obliged in relation to any partial intestacy to act in accordance with s 38 of the Act, which will require her to take further steps to try and locate Stephen.  She is aware that he has an entitlement to part of Jacob’s estate in that circumstance.  I am satisfied that it is appropriate to make the orders notwithstanding the inability to locate Stephen.
19. [19]
    In the circumstances, I am satisfied that Jacob intended the document which is exhibit “A” to the affidavit of Susan Ellen Ormerod sworn 29 November 2021 to form his Will and that probate should be granted to Susan.
20. [20]
    I will initial the draft order that has been provided to me and make the order in accordance with the draft.