Re O'Connor; Ex parte Lennox[2024] QSC 224

SUPREME COURT OF QUEENSLAND

1. [1]
   James Edward O'Connor died on 1 July 2020. He had been a medical specialist who had never married and had no children. On 23 May 2003 he had executed a will in which he left numerous gifts to friends, relatives and charities (the Will). His appointed executors died before he did. Ms Lennox (who is the authorised representative of Cancer Council Queensland) seeks an order that she be granted letters of administration with the Will and a “codicil” dated 8 April 2020. Cancer Council receives nothing under the Will but would receive 20% of the deceased’s estate under the “codicil”.
2. [2]
   After Dr O'Connor’s death some handwritten papers were found at his home by some relatives (the Update Notes). Ms Lennox argues that they constitute an informal codicil which should be given effect.
3. [3]
   St Vincent de Paul Society Victoria Incorporated receives nothing under the “codicil” but is the major beneficiary under the Will. It intervenes and submits:

   1. that there is no satisfactory evidence that Dr O'Connor had intended that the Update Notes operate as a codicil to the Will; and
   2. as the presumption of capacity does not apply to an informal document, there is a paucity of evidence to allow the court to conclude that he had the necessary capacity.
4. [4]
   The dispute to be determined concerns the nature and effect of the Update Notes.

The Will

5. [5]
   The Will was drawn by a firm of solicitors in Victoria. It is expressed in conventional terms with the usual powers and obligations. It provides for numerous gifts to named individuals and to institutions which have a charitable or educational role. Each gift is expressed as a percentage of the deceased’s estate.

Finding the Update Notes

6. [6]
   Dr O'Connor had lived in Victoria for some time. Many of the beneficiaries lived in or are located in that State. He moved to Coolangatta when he was about 75 and lived there until his death.
7. [7]
   In about the middle of June 2020 he suffered a heart attack and was taken to Gold Coast University Hospital. Staff at the hospital contacted Catherine McGovern and her brother Mark O'Connor. Their names had been found in an address book when Dr O'Connor was admitted. They are second cousins of Dr O'Connor. Both of them travelled to the hospital but the deceased was not able to talk due to his condition.
8. [8]
   While they were on the Gold Coast they went to his unit at Coolangatta to search for his “important documents and personal effects.” When they were doing that, they found a handwritten document (held together with a bulldog clip) in a suitcase with the deceased’s bank statements. It comprised eight pages (each numbered) and contained 30 paragraphs each of which was numbered. At the top of the first page it bears the heading “UPDATE AND CHANGES TO THE WILL OF JAMES EDMOND O'CONNOR” and two dates – “10/02/2020” and “8/4/2020”. A signature, which is similar to the deceased’s signature on the Will, appears on the top of the first page and at the conclusion of the writing on the last page. The date “8/4/2020” also appears at that point. In addition to the signatures each page appears to have been initialled.

The terms of the Update Notes

9. [9]
   The document commences “I leave to the following cousins.” There then follows ten names and addresses and the note “0.4% of the estate” against each name. That is followed by a list of 16 entities with an identified purpose, for example:

3. “The Smith Family to help disadvantaged families and families facing violence    4% of the estate.”

10. [10]
    A more detailed instruction appears in the paragraph numbered 24:

3. “To the RANZCOG foundation, College House, 254 – 260 Albert St, East Melbourne, Vic 3002.

3. For

3. (i)
   research and education into the antenatal period, especially the avoidance of stillbirth

3. (ii)
   assistance to families and staff distressed by a poor outcome

3. 6% of the estate

3. To be named the Ellen Mary O'Connor Bursary

1. –to be awarded anually [sic] for one year
2. –may make more than one award per year
3. –in perpetuity if possible and practical

3. 6% of the estate”

11. [11]
    Ellen Mary O'Connor was the deceased’s mother.

Another document was found in his papers

12. [12]
    Another document was also found. It appears to be in the same handwriting as the Update Notes and comprises six pages (the Detailed Notes). On the top of the first page appears:

“James O'Connor

Income Tax Return for the

year ended 30 June 2019”.

13. [13]
    That heading is then followed by these entries: income, interest, dividends, deduction, health fund and PAYG. Then there are details of bank account numbers and the companies in which he held shares. At the foot of the page is a signature which is similar to the deceased’s signature on the Will and the name “James Edmond O'Connor”.
14. [14]
    The second page bears the heading: “Details for last will of James Edmond O'Connor.” Under that appears the heading “Assets” followed by six subheadings: cash deposits, shares, units, property, superannuation, and motorcar; with each subheading containing details of bank accounts and other information relating to those subheadings. At the foot of the second page appears a mobile phone number, a post office box number and the name and address of “Accountant for annual tax return.”
15. [15]
    On the third and fourth pages there are brief details of what may be assumed is the history of the deceased’s shareholdings in Barclays PLC, Westpac, BlackRock Equity and “IOOF listed company(Holdings Ltd).” They consist of notes about acquisition of shares, taking dividends as shares and the initial money invested.
16. [16]
    On the fifth page the following appears:

“Allow some flexability [sic] of will

thorough/accurate details

Prepare for legal advisor –

Personal details, marital status, copy of earlier will, superannuation, last tax return, shares, deposits

Will must be in writing, signed by willmaker & witnessed by two people – all using the same pen.

Executor can have big task […] Arranging funeral and protecting the assets, usually needs probate, collects death certificate, pay debts & liabilities, file tax return up to date of death, inform Medicare, State & federal electoral rolls [sic], local council, health fund, vehicle registration, library, body corporate, may need > 1 executors

*Professional executor/trustee --- typically a lawyer accountant or trustee company eg 5%, 2.5%, hourly rate of $330/hr for executors time or hourly rate to $[unclear]

In some State max is 5% and can negotiate commission at time of making of the will. Some people may decline or not be able to act as executor

I revoke all previous testamentary acts

Debts are paid [unclear] priority before benefits distributed

Directions re funeral

Personal chattels

Charities Tax exempt

Tax deduction

Codicil - able to make changes in will w/o drawing up new will

To assist executor, full name & address, occupation at retirement, date and place of birth, full name & occupation of father, mother’s full name, maiden name & occupation

Aged care

Community aged care package

Extended aged care at home

Residential care”

17. [17]
    On the sixth page the following appears:

“Formulate estate planning objectives

Identify estate assets

Identify beneficiaries

Compile financial documents

Appointment for estate planning lawyer

To discuss objectives

Advise lawyer to liase [sic] with other advisers

Lawyer prepares draft documents

For clients review

Further meeting with lawer [sic] to

Sign the documents

Store in safe place

Notify where documents are

? Power of attorney  –  financial

–  legal

–  medical

–  lifestyle”

18. [18]
    No date appears on these pages but, as the first page bears the heading “Income Tax Return For The Year Ended 30 June 2019” followed by references to “Private Health Fund Statement for 2019” and other relevant information, it is reasonable to conclude that the document was created after 30 June 2019.

The applicant relies on s 18 Succession Act 1981

19. [19]
    The Succession Act sets out, in Part 2 Division 2 and 3, the requirements for making and altering wills. Those requirements may be dispensed with if the circumstances set out in s 18 are present. It provides:

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.”

How should s 18 be applied?

20. [20]
    The applicable principles were comprehensively dealt with by Boddice J (with whom Gotterson JA agreed)in Lindsay v McGrath:^[1]

“[57] In Hatsatouris v Hatsatouris Powell JA observed, in relation to the analogous provision in New South Wales:

“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:

1. was there a document,

2. did that document purport to embody the testamentary intentions of the relevant Deceased?

3. 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?”

This approach has been applied in Queensland.

[58] The second element requires a consideration of the expression “testamentary intentions”. In Re Masters (deceased) Mahoney JA observed:

“… [The] document must state the deceased’s ‘testamentary intentions’, that is, his wishes or intentions as to how, voluntarily, his property is to pass or be disposed of after his death. A will may, of course, do other things: it may, for example, appoint a legal personal representative, exercise a special power, appoint a guardian or the like: see Halsbury’s Laws of England, par 202. But it is the disposition of the deceased’s property voluntarily after his death which is, for present purposes, the relevant characteristic of a will.”

[59] The third requirement requires the Court to be satisfied on the evidence that the deceased, either at the time of drafting the document or subsequently, formed the intention that the particular document operate as his or her Will. That requirement does not involve establishing that the deceased consciously set his or her mind to the legal formalities of making a Will. However, it is not enough that the document set out the deceased’s testamentary intentions. What must be established, by evidence, is that the deceased intended the document to operate to dispose of the deceased’s property upon death.

[60] Great care is to be taken in the evaluation of the relevant evidence. To satisfy the onus, the evidence must show more than that the particular document sets out the deceased’s testamentary intentions or that it is consistent with other statements the deceased made about what he or she wanted to happen to the property upon death. The evidence must establish on the balance of probabilities that the deceased wanted the particular document to be his or her final Will, and did not want to make any changes to that document.

[61] The expression “without more”, used by Powell JA in Hatsatouris emphasizes the distinction between a document which merely records testamentary intentions and a document which records such intentions in a complete and concluded way such that it is intended by the author to operate as his or her last Will. On this aspect, the observations of Habersberger J in Fast v Rockman are apposite:

“Like Murray J in Dolan v Dolan, I consider that the words ‘without more’ have been mentioned by way of emphasising that the court must be satisfied that the deceased really did intend the terms of the document – ‘without any alteration or reservation’ – to be the manner in which his or her property was to be disposed of upon his or her death. Or as EM Heenan J put it in Mitchell v Mitchell, the words ‘without more’ were used in Oreski v Ikac:

‘… to emphasise the need for the document being propounded for proof as an informal will to express the concluded testamentary intentions and decision of the deceased rather than being some provisional, preliminary or tentative proposal which had not by then received the deceased’s full assent.’”

[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.” (citations omitted, emphasis added)

21. [21]
    The appropriate method to deal with the various issues was summarised by Hallen J in Re Estate of Walter Ostro^[2] where he said:

“[147]  The Court resolves the questions in dispute by looking at the probabilities on the totality of the evidence available, including, but not limited to, evidence relating to the manner in which the document was executed, if at all, and any evidence of the testamentary intentions of the deceased, including evidence of statements made by him or her. Thus, the Court determines, firstly, the objectively discerned nature of the content of the document, and then, subjectively, whether the specific deceased had the necessary intention.”

22. [22]
    In assessing whether the deceased held the necessary intention, the existence of prior solicitor-drawn wills, when examining the extent of the failure to comply with formalities, may also be taken into account. An inference may be drawn that the deceased was aware of the formalities required for a will. This may affect the question whether the court should be satisfied that the deceased intended the document to form the will.^[3]

What is the nature of the content of the Update Notes?

23. [23]
    The relevant content of the Update Notes is the list of beneficiaries with an apportionment of his estate. It contains a reference to his Will in the heading, but the true nature of the document needs to be assessed in the light of the Detailed Notes.

Did Dr O'Connor intend that the Update Notes form part of his Will?

24. [24]
    The evidence does not support a conclusion that Dr O'Connor intended that the Update Notes act as a codicil to his Will. Rather, the evidence leads to the conclusion that they constituted notes to be used when considering changes he might make to his Will.
25. [25]
    Dr O'Connor knew what a will was. He had already made one which observed the necessary formalities. I have no difficulty in drawing the inference that he was aware of those requirements when he created both the Update Notes and the Detailed Notes.
26. [26]
    The Detailed Notes were, I find, made at or about the same time as the Update Notes. There is nothing to suggest that they were made before 1 July 2019 but there is much to suggest that they were made after that date when the relevant financial details would have been known. There are many indications that he had not executed a document which he intended to form part of his Will but that he had compiled the information to use in making a new will or codicil. Some examples are:

    1. On the second page there is an entry: “Details for last will of James Edmond O'Connor.”
    2. At the head of the fifth page he writes: “Allow some flexability [sic] of will.”
    3. On the fifth page he sets out in detail the requirements for a valid will such as: that it be in writing, signed by the willmaker and witnessed by two people.
    4. He refers to the duties of an executor and the possibility of using a professional executor/trustee. In doing so he refers to the payment of the executor’s fees and that it was possible to “negotiate commission at time of making of the will.”
    5. He sets out the effect of a codicil: “Codicil – able to make changes in will w/o drawing up a new will.”
27. [27]
    Whether he created the Detailed Notes before or after the Update Notes it is unlikely that he would have made such a note if he had intended that the Update Notes would work as a codicil. His own notes demonstrate that he knew that the Update Notes lacked the necessary formalities.
28. [28]
    The Update Notes did contain Dr O'Connor’s signature and that can sometimes be indicative of an intent that the document was intended to have testamentary intent.^[4] But all such documents must be considered in context. Dr O'Connor knew that witnesses were required. He also signed, in the same way, the Detailed Notes. I regard it as nothing more than a confirmation that he had prepared both sets of notes.
29. [29]
    The last page of the Detailed Notes sets out his plan which included:

    1. identifying assets;
    2. identifying beneficiaries;
    3. making an appointment with an estate planning lawyer to discuss objectives;
    4. advising those lawyers to liaise with other advisers (hence the accountant’s contact details);
    5. having the lawyer prepare draft documents for his review; and
    6. having a further meeting with the lawyer to sign the document.
30. [30]
    He identified his assets in the Detailed Notes and identified his beneficiaries in the Update Notes. The rest of his plan was, at the time of his death, yet to occur.
31. [31]
    Dr O'Connor had carefully recorded many things which would be necessary for the creation of a new will or codicil, but I find that he did not intend that the Update Notes should have testamentary effect. They were to assist in the making of a revised will after he had taken professional advice.

Did Dr O'Connor have the necessary capacity?

32. [32]
    There is no presumption of testamentary capacity in respect of a document which has not been formally executed.
33. [33]
    The onus of demonstrating that Dr O'Connor had the requisite capacity falls on the applicant. There is no evidence specifically dealing with that issue. But, it is not essential that, for example, medical evidence be provided.^[5] Evidence could be called from persons who had contact with the deceased at the relevant time. There was no such evidence.
34. [34]
    It is possible, though, to take into account the documents which were created by Dr O'Connor. They do not exhibit anything other than a reasonably detailed list of matters which he, together with his advisers, would need to consider. In the Update Notes he lists all beneficiaries under the heading “I leave to the following cousins” and does not distinguish between his cousins and other entities but I do not place any weight on that. The deceased’s death certificate does not refer to a condition, such as dementia, which might affect capacity. The evidence was that he had been in reasonable health until the medical event which led to his death. All these matters, though, can only lead, at the most, to a tenuous inference. I am not prepared to draw that inference. The onus is on the applicant and in the absence of any evidence which directly deals with the issue, I find that the onus has not been discharged.

Disposition

35. [35]
    The Update Notes do not constitute a legally operative testamentary document. As there are no executors for the Will, it is necessary that letters of administration be granted. Under the Will, St Vincent de Paul Society Victoria Incorporated is the beneficiary with the highest priority for letters of administration under r 603(3) of the Uniform Civil Procedure Rules. The distribution of gifts under the Will is not the subject of any discretion and so there is no basis for concern about partiality.
36. [36]
    St Vincent de Paul Society Victoria Incorporated has consented to being appointed as administrator of the estate with the grant issuing to Mary Catherine Simpson on its behalf.
37. [37]
    I am satisfied that there is no need for further advertisement given the notices that have already been published.

Orders

3. 1.
   The Application filed 11 July 2024 is dismissed.

3. 2.
   Pursuant to Rules 603(1)(d) and 603(3) of the Uniform Civil Procedure Rules and subject to the formal requirements of the Registrar, a common form grant of Letters of Administration with the Will of James Edmond O'Connor, deceased, dated 23 May 2003, be granted to Mary Catherine Simpson, on behalf of St Vincent de Paul Society Victoria Incorporated.

3. 3.
   The parties’ costs of and incidental to this application be paid from the estate on the indemnity basis.