Queensland Judgments
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Re Spencer (deceased)

Unreported Citation:

[2014] QSC 276

EDITOR'S NOTE

Dalton J

6 November 2014

This case raises an interesting point of intersection between the operation of s 18 of the Succession Act 1981, which allows the Court to dispense with the execution requirements for a will, and the requirements for testamentary capacity. The ‘would-be’ testator (“Mr Spencer”) in this matter had consulted with a solicitor a number of times regarding his intention to draw-up a new will and the precise content of that document. Upon becoming aware that he was ill, Mr Spencer again contacted his solicitor informing him of his illness and confirming his previous instructions. Mr Spencer’s health quickly deteriorated and he contacted his solicitor to urgently draw up a document in accordance with his previous instructions (the “unsigned document”) and bring it to the hospital. The following day the solicitor attended the hospital with the unsigned document, however, it was apparent that Mr Spencer now lacked testamentary capacity. [11]–[12]. Mr Spencer died the following day, without having executed the unsigned document. [13]. The issue before the Court was whether the unsigned document could be admitted as Mr Spencer’s will to probate.

In considering the legal effect of the unsigned document, the Court first turned its mind to whether Mr Spencer had had the necessary testamentary capacity to execute a will. After a careful consideration of the evidence given at trial, see [14]–[41], the Court concluded that at the necessary times, being the times in which he gave instructions to his solicitor regarding the terms of his proposed will, Mr Spencer had testamentary capacity. [42]–[44]. That Mr Spencer may not have had testamentary capacity when he asked his solicitor to attend the hospital, and did not have testamentary capacity on the morning that the solicitor tried to have him execute the will, the Court concluded, was of no effect in this case s on these occasions he was not giving instructions as to the contents of his will. [45]–[46].

Pursuant to s 18(2) of the Act the court may dispense with the execution requirements for a will where there exists: (a) an unexecuted document purporting to embody the testamentary intentions of the deceased relevant document; and (b) evidence to satisfy the Court that it was the deceased’s intention that the subject document would operate as their will. [48]–[49]. To satisfy these requirements “there must simultaneously be an extant document and the requisite intention.” [53]. Though the Court was satisfied that there existed an unexecuted document that purported to state Mr Spencer’s testamentary intention, more problematic was whether Mr Spencer had intended this document, being the document brought to the hospital, to be his will. [56]. Two issues concerned the Court: (1) whether Mr Spencer needed to have an intention that the unsigned document, in its then form, would operate as his will, [54]; and (2) the effect, if any, of Mr Spencer’s lack of testamentary capacity when shown the unsigned document, [56].

In briefly addressing its first concern, the Court concluded that Mr Spencer had demonstrated the requisite intention, despite the fact that the unsigned document had been prepared by a solicitor, and thus it would have been intended to take effect only after it had been properly executed. [55]. The Court noted that the Act does not require the deceased to have the intention that the subject document operate without more as their will, and was satisfied from the evidence before it that Mr Spencer intended the unsigned document to be his will, rather than merely a draft for his consideration. Id. Turning to its second concern, by analogy with cases, such as Parker v Felgate, where the court had held that “a will prepared in accordance with the testator’s instructions is valid, though at the time of execution the testator remembers only that he has given instructions and believes the will to be in accordance with them,” [63] the Court concluded that Mr Spencer had demonstrated the necessary intention that the unsigned document operate as his will. While, at the time of execution, Mr Spencer did not have testamentary capacity, from the evidence led about his behavior at the hospital the Court concluded that he was not beyond forming an intention, and the intention he had formed was that the unsigned document was to operate as his will. [60], [64]. Accordingly the Court declared the unsigned document to be Mr Spencer’s will.

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