Re Chambers (dec'd)

This case was an application on the papers for a grant of letters of administration. A two-page document purporting to be a will had been signed by the testator and two witnesses. The first page recorded all the operative clauses. The second page only recorded the attestation clause. The signature of the testator appeared on the first page, but not the second page. The signatures of the witnesses appeared on the second page, but not the first page. Justice Davis held that the will had been duly executed. There is nothing in the text of s 10 Succession Act 1981 which required that signatures be at the “foot of the will”, nor is there a requirement that the witnesses attest to having witnessed the testator sign the will in a place immediately adjacent to the signature of the testator.

Davis J

13 October 2023

Background

The applicant applied for letters of administration in relation to a document which purported to be the will of the testator. [1]–[7]. The will consisted of two pages. [9]. The first page recorded all the operative clauses with the second page leaving only the attestation clause. [9], [12]. The testator’s signature appeared next to an operative clause which bequeathed his entire estate to the applicant and in the footer of the first page, however, he did not sign the attestation clause on the second page. [10]–[11], [13]–[14]. The signatures of the two persons who had together witnessed the testator sign the document had been recorded in the attestation clause on the second page, however, the witnesses did not attest to the testator’s signatures which appeared on the first page. [12]–[14]. The Succession Act 1981 s 10 prescribes how a will must be executed. [27]. It relevantly provides as follows:

“10 How a will must be executed

(1) This section sets out the way a will must be executed.

(2) A will must be—

(a) in writing; and

(b) signed by—

(i) the testator; or

(ii) someone else, in the presence of and at the direction of the testator.

(3) The signature must be made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time.

(4) At least 2 of the witnesses must attest and sign the will in the presence of the testator, but not necessarily in the presence of each other.

(5) However, none of the witnesses need to know that the document attested and signed is a will.

(6) The signatures need not be at the foot of the will.

(7) The signature of the testator must be made with the intention of executing the will.

(8) The signature of a person, other than the testator, made in the presence of and at the direction of the testator must be made with the intention of executing the will.

(9) A will need not have an attestation clause…” [27].

Whether the will was duly executed in accordance with s 10 Succession Act 1981

Justice Davis observed that the text of s 10 sub-s (2) and (4) requires that for a will to be duly executed under the Succession Act 1981 a testator and two witnesses must sign the will but their signatures do not need to be “at the foot of the will”. [28]. This construction was supported by the context of s 10. [31]. It was introduced by the Succession Amendment Act 2006 which implemented a number of recommendations of the Queensland Law Reform Commission, including relevantly, the abolition of the formality that a will be signed “at the foot or end thereof”. [31]. Whilst due execution can be affected by a signature before the end of a will, it does not necessarily avoid the consequence of making uncertain the proper construction of the will or whether the testator had the requisite testamentary intention that clauses appearing after the signature were operative. [33].

These uncertainties did not arise in the circumstances of this case having regard to the positioning of the testator’s signature and the absence of operative clauses on the second page. [34]. The witnesses did in fact sign at the foot or end of the will. [36]. There was nothing in the text of s 10 of the Succession Act 1981 which requires that witnesses must sign on the same page or place as the testator. Section 10 sub-s (4) requires that the witnesses “attest and sign the will” and s 10 sub-s (6) provides that “the signatures need not be at the foot of the will”. [34]. The reference to “signatures” in s 10 sub-s (6) must be a reference the signatures of the testator and the witnesses. [34]. Some of those signatures might and might not be at the foot of the will and some might be on different pages to others. [34].

Disposition

In the result, letters of administration were granted to the applicant to administer the testator’s will. [38].

D Kerr