Re Marshall

The applicant was one of six adult children who survived the deceased. An envelope containing a document which stated that it was the deceased’s last will and testament was found among her belongings. The document relevantly nominated the applicant to take care of the deceased’s affairs “if she could not do so”, gave the applicant power of attorney “if needed”, and stated that the deceased trusted the applicant to ‘take care of anything that she could not’. The document was not executed in accordance with the requirements of the Succession Act 1981. Consequently, the applicant applied for orders dispensing with the execution requirements on the basis that the Court should be satisfied, pursuant to s 18 Succession Act 1981, that the deceased intended the document to form her will. Henry J found that the document did not purport to state the deceased’s testamentary intentions.

Henry J

12 May 2020

Background

The applicant was one of six adult children who survived the deceased. [3], [5]. An envelope labelled “MY WILL LAST WISHES …” containing a document which stated that it was the deceased’s “LAST WILL AND TESTOMENT [sic]” was found among her belongings. [8], [10]–[11]. The document nominated the applicant “ … TO TAKE CARE OF ALL OF MY AFFAIRS IF I CANNOT DO THIS MYSELF”, gave him “MY POWER OF ETERNY [sic] … IF NEEDED”, and stated that the deceased trusted him to “ … TAKE CARE OF ANYTHING I CAN’T”. [11].

The document was signed, but did not comply with the execution requirements of the Succession Act 1981. [11]–[12], [17]. As such, the applicant applied for orders dispensing with those requirements on the basis that the Court should be satisfied, pursuant to s 18 Succession Act 1981, that the deceased had intended the document to form her will. [3]. He also sought a grant of letters of administration and provided extrinsic evidence in favour of a declaration that, on the proper construction of the document, the deceased’s estate was to be distributed to him on testamentary trust. [4], [54]. 

Satisfaction pursuant to s 18 Succession Act 1981 

Henry J explained that before the document could be saved by s 18(2) Succession Act 1981, it needed to be established, pursuant to s 18(1)(a), that it “purported to state the deceased’s testamentary intentions”. [21]. His Honour noted that extrinsic evidence going to that matter was not admissible, because the reference to that evidence in s 18(3) only applied after s 18(1)(a) was satisfied. [33]. To purport to state the deceased’s testamentary intention, the document needed to “purport to indicate that it [was] to take effect upon death and … what should be done with the deceased’s property”. [36].

His Honour reasoned that the document in question did not expressly refer to the deceased’s death, or indicate that it was not to take effect until that time. [37]. The assertion that it was the deceased’s last will and testament only raised an inference that the document was to take effect in that manner. [37]. However, Henry J considered that the reference elsewhere in the document to a power of attorney, being a power that operates inter vivos, excluded the inference that the document only purported to take effect upon the deceased’s death. [38].

Henry J clarified that “at best” the language of the document allowed for the possibility that it could take effect upon the deceased’s death. [39]–[41]. Ultimately, it was not the event of death, but the event of incapacity, which the document purported to rely upon for its vigour and effect. [41]. While recognising that it may be arguable that s 18(1)(a) applies to “part of a document” that purports to state a testamentary intention in the alternative to some other intention, his Honour resolved that in this case, any alternative intention only arose by implication. [43].

His Honour also did not consider that the document purported to indicate what should be done with the deceased’s property. [47]. Henry J acknowledged that the vague and general language of the document might arguably purport to confer an implied power on the applicant to manage the deceased’s property. [49]. However, his Honour underscored that “appointing a person, however described, to be in charge of distributing property of a deceased or property in a deceased’s residual estate [said] nothing as to the fate of that property” in the manner required by s 18(1)(a). [49]–[51]. Therefore, his Honour concluded that s 18 did not apply to the document and the application to dispense with s 10’s execution requirements failed.

Disposition 

In the result, Henry J granted the applicant letters of administration on intestacy on the basis that the applicant had equal priority to his siblings, and his siblings had notice of the application. [59]–[63].

B McNamara