Selig v Selig[2024] QSC 189

SUPREME COURT OF QUEENSLAND

1. [1]
   The plaintiffs are the adult children of the deceased, Ronald Gordon Selig, from his marriage to his first wife, Vicki Garvie. The deceased and Ms Garvie married in 1974, separated in 1994 and divorced in 1995.
2. [2]
   The defendant is the deceased’s second wife. They met in 1995, married in 1996 and separated in about 2008 but did not divorce. There was an informal property settlement between the deceased and defendant in 2015.
3. [3]
   On 6 November 2003, during his marriage to the defendant, the deceased executed a formal Will (“2003 Will”), appointing the defendant as his executor.
4. [4]
   On 26 November 2022, the deceased died in an accident whilst working on a remote rural property near Longreach. The defendant subsequently applied for Probate of the 2003 Will. The plaintiffs opposed the application and lodged a caveat. The defendant’s application for Probate was dismissed on 23 June 2023.

5. [5]
   The plaintiffs now bring proceedings seeking orders in respect of documents they contend comprise an informal Will made by the deceased on 23 April 2021, namely a document titled “My Wishes” and a completed “Nomination of Beneficiaries Form” for a life insurance policy the deceased had with Australian Seniors Insurance (“ASI”). The plaintiffs’ case is that the deceased completed and signed each of the documents, in the presence of his first wife and with her assistance, and by doing so he intended that those documents would supersede the 2003 Will and would comprise his Last Will and Testament.
6. [6]
   Under the “Nomination of Beneficiaries Form”, each of the plaintiffs are to receive 50% of the $150,000 in benefits payable by ASI under the deceased’s life insurance policy.

7. [7]
   By their claim, the plaintiffs seek orders pursuant to s 18 of the Succession Act 1981 (Qld) (“the Act”) to dispense with the formal requirements under s 10 of the Act in relation to the informal Will; a declaration pursuant to s 18 of the Act that the deceased intended the informal Will to be his last Will and Testament; and an order under s 6 of the Act that the court pronounce for the force and validity of the informal Will.  The plaintiffs also seek an order appointing them as the administrators of the estate of the deceased, together with other ancillary orders.
8. [8]
   The estate is relatively small. It consists only of the unpaid life insurance policy benefits and modest furniture and personal effects of relatively minor value.
9. [9]
   The plaintiffs had previously sought to claim the benefits payable under the life insurance policy as the nominated beneficiaries upon the death of their father. However, the insurer refused their claim, insisting that it required an order of the court indicating who was entitled to make the claim, on account of the fact that the Nomination of Beneficiaries Form had not previously been submitted to the insurer before the death of the deceased. Had the form been received by ASI before the deceased’s death there would not be a need for the current proceedings.
10. [10]
    The plaintiffs’ case proceeds upon a copy of the Nomination of Beneficiaries form because ASI did not retain the original document which it had received from the plaintiffs when they sought to claim under the deceased’s life insurance policy.
11. [11]
    The defendant disputes the plaintiffs’ claim, primarily on the grounds that she alleges that the informal Will and the deceased’s signatures on the 23 April 2021 documents are forgeries. She contends that the plaintiffs’ claim should be dismissed and instead asks the court to make orders in her favour in respect of the 2003 Will.
12. [12]
    The central issues for determination are:

    1. Did the deceased make an informal Will?
    2. If so, can the Court proceed on a copy of the informal Will?

Relevant law

13. [13]
    The relevant law that applies in this case is not in dispute.
14. [14]
    Section 10 of the Act sets out how a Will must be executed. Amongst other things, the section requires that a testator must sign a Will in the presence of at least two persons, who are present at the same time, and that at least two of the witnesses to the testator’s signature must attest and sign the Will in the presence of the testator, but not necessarily in the presence of each other. The section also requires that the signature of the testator must be made with the intention of executing the Will.
15. [15]
    Despite the formal requirements stipulated by s 10, s 18 of the Act states:

3. “18
   Court may dispense with execution requirements for will, alteration or revocation

3. (1)
   This section applies to a document, or a part of a document, that—

3. (a)
   purports to state the testamentary intentions of a deceased person; and

3. (b)
   has not been executed under this part.

3. (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. (3)
   In making a decision under subsection (2), the court may, in addition to the document or part, have regard to—

3. (a)
   any evidence relating to the way in which the document or part was executed; and

3. (b)
   any evidence of the person’s testamentary intentions, including evidence of statements made by the person.

3. (4)
   Subsection (3) does not limit the matters a court may have regard to in making a decision under subsection (2).

3. (5)
   This section applies to a document, or a part of a document, whether the document came into existence within or outside the State.”

16. [16]
    In Hatsatouris v Hatsatouris [2001] NSWCA 408, [56] Powell JA, when considering an analogous provision to s 18 of the Act, contained in s 18A of the Wills Probate and Administration Act 1989 (NSW), stated:

“It is, and has long been, my view that the questions arising on applications raising a question as to the applicability of s 18A are essentially questions of fact, the particular questions of fact to be answered being:

3. (a)
   was there a document;

3. (b)
   did that document purport to embody the testamentary intentions of the relevant Deceased?

3. (c)
   did the evidence satisfy 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 her, or his, then intention that the subject document should, without more, on her, or his, part operate as her, or his, Will?”^[1]

17. [17]
    In addition to these requirements, the court must also be satisfied as to the various elements applicable to the execution or making of a formal Will.  In Re Nichol; Nichol v Nichol [2017] QSC 220, Brown J summarised those requirements in the following passage:^[2]

“The classic statement of what constitutes testamentary capacity was set out by Cockburn CJ in Banks v Goodfellow. Applegarth J in Frizzo & Anor v Frizzo & Ors stated that:

‘The classic test for testamentary capacity was enunciated in Banks v Goodfellow.  The relevant principles were restated by Powell JA in Read v Carmody:

1. The testatrix must be aware, and appreciate the significance, of the act in the law upon which she is about to embark;
2. The testatrix must be aware, at least in general terms, of the nature, extent and value of the estate over which she has a disposing power;
3. The testatrix must be aware of those who may reasonably be thought to have a claim upon her testamentary bounty, and the basis for, and nature of, the claims of such persons;
4. The testatrix must have the ability to evaluate, and discriminate between, the respective strengths of the claims of such persons.

In this last respect, in the words of Banks v Goodfellow, no disorder of the mind should poison her affections or pervert her sense of right, nor any insane delusion influence her will, nor anything else prevent the exercise of her natural faculties.

The Banks v Goodfellow test does not require perfect mental balance and clarity; rather, it is a question of degree.  As Cockburn CJ put it in that case, ‘the mental power may be reduced below the ordinary’ provided the testatrix retains ‘sufficient intelligence to understand and appreciate the testamentary act in its different bearings’.’”

18. [18]
    In this case, the plaintiffs have not produced all of the original documents that are said to comprise the informal Will. They have produced the original My Wishes document but have been unable to produce the original Nomination of Beneficiaries Form, which they say was inadvertently disposed of by ASI after they submitted it when seeking to make a claim on the deceased’s life insurance policy. In those circumstances, the plaintiffs rely on a copy of the Nomination of Beneficiaries Form.

19. [19]
    Probate may be granted in respect of a copy of a Will (including an informal Will) provided the court is satisfied of the following matters:^[3]

    1. there actually was a Will;
    2. the Will revoked all previous Wills;^[4]
    3. the presumption that when a Will is not produced it has been destroyed has been overcome;
    4. there is evidence of the Will’s terms; and
    5. there is evidence of the Will’s execution.
20. [20]
    It is not necessary for a Will to expressly state that all previous Wills are revoked. Previous Wills may be revoked by implication. That may occur where testamentary dispositions under the latter Will are entirely inconsistent with testamentary dispositions under any previous Will.^[5]

Did the deceased make an informal Will?

21. [21]
    Although there was quite a deal of evidence adduced at trial, including affidavits sworn by each of the plaintiffs and the defendant, it is not necessary that I canvass the evidence in any great detail. Much of it related to background matters concerning the deceased and his relationships with his first wife and their children (the plaintiffs) and the defendant and the two further children he subsequently fathered with the defendant before their separation.
22. [22]
    The most pertinent evidence for the plaintiffs was contained in an affidavit sworn by Ms Garvie, in which she deposed to the following:

    1. Despite being divorced, she and the deceased had always maintained a friendly relationship;
    2. Since about 2014, she was living in Nambour and the deceased was living at Buderim. They would see each other two or three times each week, except for times when the deceased was away for work;
    3. On 23 April 2021, the deceased called her and asked her to come to his place to help him with something. She went over straight away and when she arrived the deceased said he wanted her to help him write his Last Will and Testament;
    4. She agreed to help the deceased as he had asked. The paperwork that the deceased wanted help with filling out was the My Wishes document and the Nomination of Beneficiaries Form. The deceased already had the documents laid out on the kitchen table;
    5. The deceased told her that he wanted her to write on the Nomination of Beneficiaries Form that each of their children, Melinda and Aaron (the plaintiffs) were 50% beneficiaries of his life insurance policy. He told her not to bother writing down anything about his furniture as it was not worth anything and when the time came Melinda and Aaron could work out what they want to do with it;
    6. She read through each of the documents with the deceased and completed the answers as the deceased instructed. It is her handwriting in each of the documents. After completing the documents, she went through each one again with the deceased, reading each out loud to make sure he could follow and to ensure that she had written what he had asked her to write;
    7. The deceased then signed each document in her presence. She confirmed that she watched the deceased sign the documents; and
    8. Before the deceased went on his last trip away for work, he told her that his Will was in the top drawer of his bedside cupboard.
23. [23]
    When cross-examined by the defendant, Ms Garvie confirmed that the Nomination of Beneficiaries Form document that she saw and assisted the deceased to complete on 23 April 2021 was published on 29 March 2021. She denied that she had not read it to the deceased. She denied that she was aware of the legal requirements for a Will at the time she helped the deceased complete the documents. She denied suggestions that the deceased did not sign each of the documents. She further denied the suggestion that the deceased could not have signed the Nomination of Beneficiaries Form on 23 April because the document was still “at the printers” at that time.
24. [24]
    The defendant did not directly put to Ms Garvie that the deceased’s signatures had been forged, but I proceed on the basis that this was implicit in the questions she asked.
25. [25]
    In addition to the evidence given by Ms Garvie, affidavits from each of the plaintiffs confirmed that, before his death, the deceased told each of them at various times that he had made his Will and that it was kept in his top drawer of his bedside table. That is where the informal Will documents were later found by the plaintiffs after his death.^[6]
26. [26]
    The defendant did not directly challenge this evidence from the plaintiffs. She did however enquire of Melinda Selig whether it was true that she had signed the My Wishes document. Ms Selig denied that suggestion.
27. [27]
    The evidence for the defendant was contained in an affidavit she had sworn. She was not required for cross-examination.
28. [28]
    It is not necessary to set out the full details of the defendant’s evidence. It is sufficient to note that in her affidavit she outlined at length the circumstances in which she and the deceased had first met, chronicled their relationship over time, including the fact that they had two children together, born in 2002 and 2007 respectively, and stated that even after they had separated in 2008 they continued to have contact and that the deceased had shown an interest in participating in building a family home. The defendant submitted that by 2022 they had effectively reconciled after their separation.
29. [29]
    Specific objection was taken to paragraph 53 of the defendant’s affidavit, which purported to provide inadmissible hearsay and opinion evidence about what a Justice of the Peace had supposedly told the defendant about the authorship of the deceased’s signatures on the informal Will documents. I excluded that evidence at trial. Although other parts of the defendant’s affidavit may also have been strictly inadmissible, the plaintiffs simply flagged a general objection and were otherwise content for me to deal with those matters as a question of weight.
30. [30]
    The defendant gave no specific evidence contradicting the evidence of Ms Garvie or otherwise bearing upon the circumstances in which the deceased signed the documents that purport to be his informal Will.
31. [31]
    The final matter to note in respect of the defendant’s affidavit is the evidence she gave at paragraph 43, in which she stated:

“In November 2022 for a week I came to a strange knowledge that I was about to die. I thought that I would fall on the stair at the porch at home. I started get my affairs in place and on 25 November 2023 I called Ronald to ask him if I were to die, would he take care of our children. He promised me that he would, however he was dead next morning. It wasn't my time to die yet. From the moment we looked into each other's eyes on 27 April 1995 we had this beautiful connection and awareness of each other.”

32. [32]
    I found this part of the defendant’s evidence inherently implausible and quite bizarre. I do not accept it.
33. [33]
    On the basis of the evidence adduced, the plaintiffs contended that I would be satisfied that each of the requirements of an informal Will have been established.
34. [34]
    The defendant on the other hand contended that I would not be so satisfied. She submitted that I would conclude that the Informal Will was forged because, despite their continuing close relationship and supposed reconciliation, the deceased never mentioned making another Will to her and because the documents that comprise the purported informal Will make no reference to the deceased’s children from his second marriage. The defendant submitted that in those circumstances it was simply illogical that the deceased would have signed the documents intending that they be his Last Will and Testament.

There is a document

35. [35]
    I am satisfied of the first requirement for establishing the existence of an informal Will.  There is a document.  The document consists of the original My Wishes^[7] booklet and a copy of the ASI Nomination of Beneficiaries Form. I note the My Wishes document is a printed booklet published by ASI, which allows a person to record their wishes with respect to their funeral arrangements.
36. [36]
    I accept the evidence of Ms Garvie outlined above, in which she explained that she completed the documents at the request of the deceased and that the deceased signed the documents in her presence after she had read back over them with him to ensure he understood their contents and that they reflected his wishes.
37. [37]
    I reject the defendant’s claim that the deceased’s signatures were forged. The defendant’s case ultimately invited me to draw that inference from the circumstances she identified. In my opinion those circumstances do not provide any basis for such a conclusion.
38. [38]
    There was cogent, direct evidence from Ms Garvie, corroborated by unchallenged evidence from the plaintiffs, that clearly established the fact that the deceased had signed the documents which he intended would be his Last Will and Testament.
39. [39]
    Furthermore, I do not accept the defendant’s evidence that she had reconciled her relationship with the deceased and that he had expressed his intention to participate in building a family home with her. Such evidence seems inherently implausible and is contrary to the evidence given by the plaintiffs, which I accept, that the deceased did not resume an intimate relationship with the defendant after their separation in 2008.

Document embodies the testamentary intentions of the deceased

40. [40]
    I accept that together the two documents embody the testamentary intentions of the deceased.  In those documents, the deceased specified:

    1. how he wanted to be dressed at his funeral;
    2. what music he wanted played at his funeral;
    3. arrangements for his funeral service;
    4. where his ashes were to be scattered;
    5. who was to be advised in the event of his death; and
    6. nominated the plaintiffs as the beneficiaries of his life insurance policy.
41. [41]
    I accept the evidence of Ms Garvie that the deceased asked her to help him write his Last Will and Testament and that is what was recorded in the documents she helped him complete on 23 April 2021.

Intention of deceased – the document would constitute his Will

42. [42]
    I again accept the evidence of Ms Garvie that the deceased told her that he wanted to make his Last Will and Testament and that in what he said and did on 23 April 2021 he expressed his intention that the documents would, without more, constitute his Will.
43. [43]
    Ms Garvie’s evidence, and the conclusion that the documents were intended by the deceased to be his Last Will and Testament, are corroborated by the plaintiffs’ unchallenged evidence that their father told them he had done his Will and had left it in the top drawer in his bedroom.

Testamentary capacity

44. [44]
    I am satisfied on the evidence that the deceased had testamentary capacity at the time he signed the documents.
45. [45]
    In particular, I note the following unchallenged evidence adduced in the plaintiffs’ case, which I accept:

    1. The plaintiffs and Ms Garvie were each in regular contact with the deceased;^[8]
    2. The plaintiffs and Ms Garvie all attest that the deceased had capacity and would have understood the nature and effect of what he was purporting to do in signing the document;^[9]
    3. As is evident from the conversations with Ms Garvie on 23 April 2021, the deceased was clearly aware of the nature, extent and value of his estate;
    4. There is no evidence of any “disorder of the mind” or any illness or diminution of mental capacity that might have affected the deceased; and
    5. The Death Certificate^[10] and the Coroner’s Report^[11] do not indicate any illness or condition that would suggest or raise any suspicion of the lack of capacity.  The cause of death being injuries sustained in a fall from a height and underlying atherosclerosis (cardiovascular disease).  The only stated underlying illness identified was of the heart and arteries after an autopsy and coronial investigation to ascertain the circumstances and causes of death.  The deceased died as a consequence of an accident.
46. [46]
    Although there was no particular evidence given by Ms Garvie or by the plaintiffs that the deceased discussed with them any claim that the defendant and/or the children he had with her might have against his estate, I am satisfied that he was aware that each was a potential claimant and that he had the ability to evaluate and discriminate between the respective strengths of their claims and those of the plaintiffs. In reaching that conclusion I bear in mind the small size of the estate and the nature and extent of the relationships the deceased had with each of his children and the defendant.

Can the Court proceed on a copy of the informal Will?

47. [47]
    In so far as the informal Will comprises a copy of the Nomination of Beneficiaries Form, I am satisfied that I may proceed on the copy of the informal Will.
48. [48]
    In my view each of the requirements to proceed upon a copy of the informal Will have been established.
49. [49]
    There was actually an informal Will. So much is evident from the original My Wishes document and the copy of the Nomination of Beneficiaries Form.
50. [50]
    I am satisfied that the informal Will implicitly revoked all previous Wills, including the 2003 Will. The terms of the informal Will are clearly inconsistent with the 2003 Will. Further, the deceased made plain to Ms Garvie that the informal Will was to comprise his Last Will and Testament.
51. [51]
    The unchallenged evidence adduced at trial explains that the original Nomination of Beneficiaries Form was in existence after the death of the deceased and was subsequently submitted by the plaintiffs to ASI when they attempted to make a claim on the deceased’s life insurance policy. The evidence further explains the circumstances in which ASI failed to retain the original document and why it is now unable to be produced. The presumption that a Will not produced has been destroyed is overcome.
52. [52]
    Finally, as I have already noted above, there is cogent evidence, which I accept, that the deceased executed the informal Will by signing each of the original documents.

Conclusion and Orders

53. [53]
    I am satisfied that the plaintiffs have established their entitlement to the relief they seek. I will make orders to the effect sought by the plaintiffs, albeit with some slight amendment in form.
54. [54]
    I order:

1. Pursuant to s 18 of the Succession Act 1981 (Qld) (“the Act”), the formal execution requirements of s 10 of the Act are dispensed with in relation to the informal Will of the deceased Ronald Gordon Selig, comprised of the original document titled “My Wishes” and a copy of the document entitled “Nomination of Beneficiaries Form”, each dated 23 April 2021, copies of which are exhibit six to the affidavit of Aaron James Selig sworn on 22 March 2024.
2. I declare the informal Will of the deceased, Ronald Gordon Selig, to be his Last Will and Testament.
3. Pursuant to s 6 of the Act, I pronounce for the force and validity of the Will of the deceased, Ronald Gordon Selig, late of 17/92 King Street, Buderim in the State of Queensland, dated 23 April 2021, in solemn form of law.
4. The plaintiffs, Aaron James Selig and Melinda Jane Selig, are appointed as administrators of the Estate of the deceased, Ronald Gordon Selig.
5. Subject to the formal requirements of the Registrar, letters of administration with the Will annexed are to be issued to the plaintiffs, Aaron James Selig and Melinda Jane Selig as the administrators.
6. The defendant is to pay the plaintiffs’ costs.