Linkenbagh v Turner[2024] QSC 316

SUPREME COURT OF QUEENSLAND

1. [1]
   Brian Hebblewhite died on 3 May 2024.  His properly executed will of 10 January 2013 appointed Mr Carl Linkenbagh and a solicitor as executor and trustee.   It made specific bequests of money in his Bendigo Bank accounts to the Young Animal Protection Society and his interest in personal property to Carl Linkenbagh.  It bequeathed the residue of his estate to Carl Linkenbagh and Jennifer Turner.^[1]
2. [2]
   After Mr Hebblewhite’s death, a copy of his properly executed will of 10 January 2013 was found by Carl Linkenbagh.  That copy contained annotations by Mr Hebblewhite, arguably suggesting he at one point was contemplating leaving specific bequests of property to Carl and his sister, Helen Thomas nee Linkenbagh, substantially diminishing, if not eliminating, the residue remaining for distribution to Carl Linkenbagh and Jennifer Turner. 
3. [3]
   Carl Linkenbagh applies for orders pursuant to s 18 Succession Act 1981 (Qld), so that the annotated copy of the original will is admitted to probate, rather than the original will. 
4. [4]
   Section 18 provides a pathway for the admission to probate of a document or part of a document which has not been properly executed as a will under the Act.  The annotated copy of the original will has not been properly executed.   It was not signed by Mr Hebblewhite, save for his initialling of the annotations, and, in any event, was not attested and signed by any witnesses.  While it is the whole of the annotated copy of the executed will which is sought to be admitted to probate, the determinative focus here is upon the annotated part of the document.  It is otherwise merely a copy of the properly executed original will, which has been found. 
5. [5]
   Section 18 contains two presently relevantly elements:

1. the document or part of a document must purport to state the deceased’s testamentary intentions (s 18(1)); and
2. the court must be satisfied the deceased intended the document or part of a document to form the deceased’s will (s 18(2)).

6. [6]
   The first element is satisfied here, but not the second element.  It is the original will, not its annotated copy, which should be admitted to probate.

Does the document purport to state the deceased’s testamentary intentions?

7. [7]
   After Mr Hebblewhite’s death, the original of Mr Hebblewhite’s properly executed will of 10 January 2013 was obtained on 14 May 2024 from Daniel Towne Lawyers, the solicitors’ firm which had possession of the will.
8. [8]
   Two days later, when Carl Linkenbagh went to Mr Hebblewhite’s residence to sort his possessions, he opened a folder titled ‘Legal’ which was on a table in the dining room of the deceased’s home.  Within it were various papers, which included two annotated copies of the typewritten form of Mr Hebblewhite’s original will of 10 January 2013.  One copy, bearing the blue stamp ‘COPY’ on its front page, was of the original will in its executed form.  The other copy, marked ‘DRAFT’ on each page, was of the original will in its unexecuted form.
9. [9]
   It is the former of those – the annotated copy of the executed original will – which Carl Linkenbagh submits meets s 18’s requirements and should be admitted to probate. 
10. [10]
    The annotations consist of two handwritten entries in Mr Hebblewhite’s handwriting, each bearing his initials. 
11. [11]
    One entry, to the immediate right of the subheading ‘3.0 RESIDUARY ESTATE’, is:

‘¹/  house, contents & car to Carl Linkenbagh and sister Helen’

Carl’s sister is Helen Thomas nee Linkenbagh.

12. [12]
    The other entry, in the margin to the left of para 3.1 under the above heading is:

‘what is left in Commonwealth Bank Account to Jennifer Lee Turner or children’

13. [13]
    Ms Turner contends the meaning of these annotations as statements of purported testamentary intention is obscure.  For instance, they are not accompanied by any striking out of the typewritten content of clause 3.1 which gives the residuary estate to Carl Linkenbagh and Jennifer Lee Turner.  Nor do they contain complete sentences, so that standing alone they do not articulate what their author meant to convey.  Further, it is at odds with the annotations purportedly making specific bequests of the house, contents and car, that they were placed near the residuary estate clause of the will, not the preceding clause dealing with specific bequests in part 2 of the will. 
14. [14]
    Those features undoubtedly herald serious challenges in constructing the meaning of the annotated copy of the executed will were it to be admitted to probate.  But the present issue is whether the document purports to state the deceased’s testamentary intentions, not whether it states those intentions clearly.
15. [15]
    The document is itself a copy of the executed will, with the consequence its typewritten content is replete with statements of testamentary intention.  That it is a document of such a character informs the apparent meaning of annotations made to it in a way which the same annotations made to, say, a shopping list, would not.   Moreover, while not formed as complete sentences, the annotations do not merely list particulars of property or persons names.  In referring to property and persons names they link the property to the person through use of the word ‘to’, apparently meaning that property should go to the corresponding person. 
16. [16]
    When such annotations are considered in the context of the document in which they are made, they likely do ‘purport’ to state the deceased’s testamentary intentions.  They suggest Mr Hebblewhite was at some point contemplating specifically bequeathing his house, contents and car to Carl Linkenbagh and his sister Helen, and what was left in his Commonwealth Bank account to Jennifer Turner or her children. 

Did Mr Hebblewhite intend the annotated copy of the executed will to form his will?

17. [17]
    That Mr Hebblewhite at some point wrote down words purportedly stating a testamentary intention does not mean, without more, that he intended the document in which he wrote them to form his will. It is not enough that a propounded document or part of it was made in contemplation of creating a new will or altering a will. The evidence must show the deceased intended that, without more, the document or part of it, would itself operate as a new will or alteration of a will.^[2]
18. [18]
    That the annotations were initialled by Mr Hebblewhite, suggests an intention by him that what he wrote would be read and be understood by its reader to have been written by him, with deliberation.  But to what end?  Was it intended by him to signal that the annotated document would thereafter be his will?  Or was it preparatory to taking some further action.  For instance, was it to convey the impression to a potential beneficiary that he was going to change his existing will accordingly or, was it in preparation for the possibility of submitting his initialled alterations to a lawyer with a view to a new will being drafted?  If either, it is noteworthy that he did not follow through and have a lawyer create such a will and then tend properly to its execution, all of which had occurred when he made his 2013 will.  In the court’s experience it sometimes happens that a prospective testator represents to a friend or relative that they will be favoured in their will, or even takes some steps towards making a new will, but in the end result decides against doing so.  
19. [19]
    It is a significant obstacle to the requirement of satisfaction in s 18(2) that, beyond the bare facts of the existence and content of the annotated copy of the executed will, nothing is known to indicate what Mr Hebblewhite intended in making the annotations. 
20. [20]
    It is tolerably clear that Mr Hebblewhite at times contemplated leaving Helen Thomas nee Linkenbagh something in his will.  For example, Carl’s mother, Maria Linkenbagh, testified to a conversation with Mr Hebblewhite, which may have been about two or three years after the birth of her grandson in 2010.  In that conversation Mr Hebblewhite mentioned he wanted to include Helen in his will but believed she needed to have an Australian bank account to be a beneficiary.  Mrs Linkenbagh, who had once acted as Mr Hebblewhite’s solicitor, explained the absence of an Australian bank account was no obstacle to Helen being a beneficiary but that in any event she did maintain a bank account in Australia.  Mrs Linkenbagh then told him that ‘he should always be sure that his current Will reflected his wishes’.  He told her, ‘Yes, I’ve got that under control; I’ve got a solicitor’.
21. [21]
    In late May 2022, Carl’s parents, Maria and Grahame Linkenbagh holidayed in far North Queensland, intending to visit Mr Hebblewhite, only to discover that he was then in hospital being treated for prostate cancer.  They visited him a number of times during their stay.  Mrs Linkenbagh, a solicitor, deposes to discussing the possibility Mr Hebblewhite may not be able to return home and that he needed to ensure his affairs were in order. 
22. [22]
    She assisted him in preparing a power of attorney appointing Carl Linkenbagh.  In Mrs Linkenbagh’s conversations with Mr Hebblewhite at the hospital, he told her that he had a will, and, where in his home to locate it, namely in a folder titled ‘Legal file’.  Mrs Linkenbagh deposes:

Brian repeated this to me a number of times, saying words such as “What’s in the folder is what I want … make sure they know that the one in the folder is the one that I want”.

23. [23]
    Mrs Linkenbagh deposed to attending Mr Hebblewhite’s home while he was in hospital to tidy it.  In the course of her visits she found a folder marked ‘Legal file’ in a pile of papers on a desk.  She deposed that when she opened the folder she saw there were a number of documents in the folder, including a will stamped ‘Copy’.  Carl Linkenbagh’s counsel invites the inference that was the annotated copy of the executed will.  But Mrs Linkenbagh did not read it.  Whether it was the annotated copy of the executed will her son would find two years later is unknown.  Whether it contained any annotations is unknown.
24. [24]
    Mrs Linkenbagh deposed she told Mr Hebblewhite the will was not the original and that the original would need to be located because that was the will her son would need as executor.  He again indicated that ‘the one in the folder was what he wanted’. 
25. [25]
    Mrs Linkenbagh made enquiries trying to locate the solicitors who prepared the will, only to find they had ceased operating.  She told Mr Hebblewhite that and then, on his instructions, wrote the following note in a notepad which he signed and Mr and Mrs Linkenbagh signed as witnesses.  The note stated:

I, Brian Charles Hebblewhite of 43/2 Lake Placid Road, Caravonica Qld 4878 confirm that I made my last will with Darin Draper solicitor of Cairns in 2013 or thereabouts.  Mr Draper and Carl Linkenbagh are the executors.  Mr Draper has moved to the Sunshine Coast and he is not sure where the original will is located.  In the event that it cannot be found after my death I wish to confirm that the draft in my folder marked ‘legal” at my home is a true copy, and contains my wishes, and is to be treated as an expression of my testamentary intentions.

26. [26]
    That note contains no reference to any annotations made to the original will.  Its effect is to confirm that the draft of the original will, within the folder marked ‘Legal’, is a true copy of the original.  It will be appreciated the original does not contain the annotations.  It follows that a copy of the will containing the annotations would not be a true copy of the original will.  The note therefore does not support the inference sought by Carl Linkenbagh.
27. [27]
    Moreover, the note’s words in referring to the original, ‘In the event it cannot be found’, convey a clear intention that it is the original which should be acted on if found.  It has been found.
28. [28]
    In light of Mrs Linkenbagh’s knowledge of what was later discovered about the annotations, Mrs Linkenbagh’s testimony implied there was significance in Mr Hebblewhite’s emphasis to her that what was in the folder was the one that he wanted, as if indicating, in a way she did not understand at the time, that there existed different versions of the will.  Yet on her own account she was someone Mr Hebblewhite had previously discussed his dispositive intention with.  It is therefore odd Mr Hebblewhite would feel the need to be as nuanced in his use of language to her as is now urged in hindsight.  Importantly that supposed nuance is premised upon a recall of conversations held some years ago which I do not regard as, and which was not held out as, likely to be word perfect.  The written note is the most reliable indicator of the significance to Mr Hebblewhite of what was in the folder, namely that it was a copy of the original.  Of course, it is conceivable that Mr Hebblewhite’s comments to Mrs Linkenbagh about the document in the folder meant he was referring to a copy he had annotated.  However, it is at least equally conceivable that his comments reflected a desire to ensure, in the absence of the original will, that a copy of his will in the folder would be acted upon. 
29. [29]
    It is unclear whether Mr Hebblewhite had made the annotations by the time of those events in late May 2022.  Further,  Mr Hebblewhite did not die until about two years later.  He in the meantime had been released from hospital and continued to live at home.  There is no evidence to suggest he was so incapacitated in the two years between the above discussed events and his death, as to have precluded him from seeking out a solicitor to draft a new will and then tend to its execution. Yet it is unlikely he would have failed to do so if the inference contended for was correct.
30. [30]
    It will be recalled that after Mr Hebblewhite’s death Carl Linkenbagh found the annotated copy of the executed will as well as a copy, marked ‘DRAFT’ on each page, of the original will in its unexecuted form.  It also contained annotations in Mr Hebblewhite’s handwriting that bore his initials.  The annotations were similar in location and content to those on the annotated copy of the executed will.  It was submitted for Carl Linkenbagh that they may have been done as practise for endorsing the executed copy.  However there is some deviation in content in that the first entry included a hyphen between the words ‘car’ and ‘Carl’,  the word ‘Helen’ did not appear after the word ‘sister’, and the second entry began with the number ‘²/’. 
31. [31]
    On the rear of the annotated copy of this unexecuted will was handwriting by Mr Hebblewhite as follows:

Beneficiaries of will.

Carl & Helen Linkenbagh – House, Contents & car

Y.A.P.S. Cairnes [sic] – Contents of Bendigo Bank accounts (remainder after expenses)

Jennifer Lee Turner & Children – What is left of Commonwealth Pensioner Savings Account Commonwealth don’t do Super any more.

32. [32]
    That writing, like the annotations, was undated.  It is consistent with Mr Hebblewhite reflecting on, and making some notes, at some unknown point in time, about specific bequests and to whom they should go.  It is of neutral effect as to what purpose Mr Hebblewhite intended to be served by his annotations to the copy of the executed will.
33. [33]
    The evidence remains intractably neutral as to whether Mr Hebblewhite’s annotations, whenever they were made, were changes he was contemplating having made to his will or changes intended without more to form or alter his will.
34. [34]
    In my conclusion, the evidence is inadequate to satisfy the court that Mr Hebblewhite intended, by the making of the annotations, that the annotated copy of his executed will was to form his will or an alteration to his will.

Orders

35. [35]
    It follows the application to admit the annotated copy of the executed will to probate should be refused and that the original will should be admitted to probate.
36. [36]
    The uncertainty created by the existence of the annotations was no fault of any party.  It was proper for Mr Carl Linkenbagh to resolve that uncertainty by this application.  It is an appropriate case in which the estate should pay the parties’ costs of the application on an indemnity basis.
37. [37]
    My orders are:

1. The application to admit the annotated copy of the executed will of Brian Charles Hebblewhite is refused.
2. Subject to the formal requirements of the Registrar, the original will of Brian Charles Hebblewhite executed 10 January 2013 be admitted to probate in solemn form.
3. The estate will pay the parties’ costs of the application to be assessed, if not agreed, on the indemnity basis.