Adams (Dec'd) [2012] QSC 103

SUPREME COURT OF QUEENSLAND CITATION: Adams (Dec’d) [2012] QSC 103 PARTIES: TREVOR ROBIN HOPPER AS EXECUTOR OF THE WILL OF EDGAR GEORGE ADMAS (DECEASED) (applicant) v ADRIAN MARK ADAMS (first respondent) and MELANIE JANE ELLIOT (second respondent) and MARTIN JAMES ADAMS (third respondent) FILE NO/S: BS 6915/11 DIVISION: Trial PROCEEDING: Application DELIVERED ON: 23 April 2012 DELIVERED AT: Brisbane HEARING DATE: 3 April 2012 JUDGE: Margaret Wilson J ORDER: 1. The Court declares for the force and validity of the will of Edgar George Adams (deceased) dated 14 April 2000, a copy of which is exhibit “A” to the affidavit of Trevor Robin Hopper 15 July 2011 filed herein, without any of the handwritten alterations appearing therein; 2. That probate of the will of Edgar George Adams (deceased) dated 14 April 2000 without those handwritten alterations be granted to the applicant subject to the formal requirements of the registrar; 3. That letters of administration on intestacy of the estate of Mary Adams (deceased) be granted to the applicant subject to the formal requirements of the registrar; 4. That the applicant’s costs of the application be paid out of the estate of Edgar George Adams (deceased) on the indemnity basis. CATCHWORDS: SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – THE MAKING OF A WILL – REVOCATION – METHODS OF REVOCATION – DESTRUCTION OR MUTILATION OR STRIKING OUT PORTIONS – IN GENERAL – where will contained several -- 1 of 6 -- 2 handwritten markings on it – where applicant made an application for probate of the will without any handwritten alterations appearing therein, and for letters of administration on intestacy of testator’s late wife – where the markings were found to be those of the testator – where none of the beneficiaries opposed the application – whether the validity of the will without any of the handwritten alterations appearing therein should be declared Succession Act 1981 (Qld), 13, 16, 18 Uniform Civil Procedure Rules 1999 (Qld), r 610 COUNSEL: I Klevansky for the applicant No appearance for the respondents SOLICITORS: Hopper Green York for the applicant No appearance for the respondents [1] MARGARET WILSON J: This is an application for probate of the will of the late Edgar George Adams ("Mr Adams") without any handwritten alterations appearing therein, and for letters of administration on intestacy of his late wife Mary Adams ("Mrs Adams"). Family relationships [2] Mr Adams died on 30 March 2011, aged 89. Mrs Adams predeceased him: she died on 20 September 2009 aged 92. Neither of them ever had any children. [3] Mr and Mrs Adams lived at Mt Gravatt. In about January 2009 he was admitted to hospital. From there he was admitted to a nursing home where he resided for the last 26 months or so of his life. [4] Mr Adams had one sibling – James Sydney Adams ("James"), who predeceased him. James had three children – Adrian Mark Adams ("Adrian"), Martin James Adams ("Martin") and Melanie Jane Elliott ("Melanie"). [5] Alan John Vigor ("Mr Vigor") is the son of Mrs Adams’ late brother Albert. Her only surviving sibling is a sister Alma who resides in a nursing home, bedridden and suffering from dementia. Mr Adams’ estate [6] Mr Adams left an estate worth approximately $1.1 million (before deduction of administration expenses). Mr Adams’ will dated 14 April 2000 [7] After Mr Adams went to hospital, Mr Vigor moved in with Mrs Adams to help ensure her well-being. He looked after the practical aspects of Mr and Mrs Adams’ affairs, including arranging a suitable nursing home for Mr Adams, paying bills, visiting Mr Adams, and buying food and cooking for Mrs Adams. -- 2 of 6 -- 3 [8] Mrs Adams did not make a will. After she died, Mr Vigor sorted papers belonging to both Mr and Mrs Adams, and in the process found two wills executed by Mr Adams – a handwritten will dated 6 February 1998 and a typewritten will dated 14 April 2000. After Mr Adams died, Mr Vigor handed the two wills, in the condition in which he had found them, to Mr Trevor Hopper, who was named as executor in the second will. [9] Mr Hopper is a solicitor and former principal of Hopper Green & Associates. He prepared the will dated 14 April 2000. [10] It is a two page document, which begins: "THIS IS THE LAST WILL AND TESTAMENT of me EDGAR GEORGE ADAMS of 9 Blaine Street, Mt Gravatt in the State of Queensland. 1. I HEREBY REVOKE all former Wills and Testamentary dispositions heretofore made by me and declare this is to be my last Will and testament. 2. I APPOINT my wife MARY ADAMS and TREVOR ROBIN HOPPER to be the Executor and Trustees of this my Will." The remaining clauses (3 – 8) are the dispositive provisions. [11] Mr Adams gave Adrian, Martin and Melanie: (a) by clause 3, $5,000 each from a particular Suncorp account; and (b) by clause 5, one-third each of the units he held at his death in the BT Select Markets Property Securities Trust (the value of each third being approximately $3,100). [12] By clause 4, he gave the balance of that Suncorp account to Elizabeth Allen. She was the daughter of a friend. At his death the balance of that account was approximately $53,000. [13] By clause 6, he gave his shares in Fosters Brewing Group Limited to Jeane Wolfendale. She was his cousin. The shares were worth approximately $48,125 when he died. [14] By clause 7, he gave his cousin Margaret Kathleen Coleman and her husband Morris Coleman 2,000 units held at the time he died in BT Balanced Returns Fund. [15] By clause 8, he left the residue of his estate to Mrs Adams. The gross value of the residuary estate was approximately $980,000. As Mrs Adams predeceased him, it will pass on intestacy to Adrian, Martin and Melanie. Markings on the will [16] Mr Vigor found the will in a somewhat creased condition. Further, there were several handwritten markings on it. The circumstances in which the will came to be in that condition are not known. Mr Vigor has sworn that he had no part in marking, creasing, or in any way altering the will. Mr Hopper has sworn that he has no -- 3 of 6 -- 4 knowledge of the markings on the will, and that he had not contact with Mr Adams after he left his residence at Mr Gravatt and went into aged care. Mr York, the principal of Hopper Green York since July 2006, has sworn to not having any conversations with Mr Adams about updating his will; he is not aware of any such conversations between members of his staff and Mr Adams; and a search of the file showed that no further instructions were received form Mr Adams. [17] In the circumstances, I infer that the markings were made by Mr Adams. [18] The markings on the will are as follows: (a) The introductory words "THIS IS THE LAST WILL AND TESTAMENT of" were crossed out in blue ink, and "No" written in blue ink above them. In the left margin, these words were bracketed in pencil and "OK" was written in pencil. The address "9 Blaine Street, Mt Gravatt" "State of Queensland" was crossed out in pencil. (b) Clause 1. In the left margin, the word "No" was inserted in pencil followed by a pencil mark bracketing the whole clause. An earlier pencilled notation, apparently rubbed out with an eraser, can just be detected. (c) Clause 2. In the left margin, there is a pencil mark bracketing the whole clause. In the left margin, there may have been an earlier pencilled notation rubbed out with an eraser. (d) Clause 3. Adrian’s address has been crossed out in pencil. The word "No" appears above that address. The address is also bracketed in pencil and the word "Out" appears beside it. There is a pencil tick beside Melanie’s address. Part of Martin’s address has been crossed out in pencil. (e) Clause 4. In the left margin, the words "To Be Taken Out" and a bracket against the whole paragraph appear in pencil. (f) Clause 5. In the left margin, beside the beginning of the clause, the word "Yes" appears in pencil. There appears to have been another pencil notation in the left margin "No?" rubbed out with an eraser. There are pencil ticks before the first words ("I give"), over Melanie’s name and over Martin’s name. The addresses of the three beneficiaries have been crossed out in pencil, with a notation "(not 24/6/2008)" above Adrian’s house number and street. There is a pencil stroke through the words "my death in BT". (g) Clause 6. In the left margin, the word "Yes" appears in pencil. There is a pencil bracket over Ms Wolfendale’s house number and street. (h) Clause 7. There is a pencil arrow and the word "Decide" pointing in the direction of Mrs Coleman’s husband’s name. The beneficiaries’ address and the subject of the bequest have been crossed out in pencil. (i) Clause 8. In the left margin, the word "Yes" appears. Discussion -- 4 of 6 -- 5 [19] The form and content of the markings on the will are such that I am not satisfied that Mr Adams intended thereby to revoke his will (either partially or in whole) or that he intended to alter it. Rather, they reflect deliberations upon possible future changes to the will – the gift to Ms Allen was "to be taken out," and he was undecided about the gift to Mr and Mrs Coleman. Otherwise, he appears to have thought it would be desirable to update the addresses of various beneficiaries. None of the markings was made in such a way that the typewritten words of the will are no longer apparent. None of the markings was accompanied by Mr Adams’ signature or that of any witness. [20] Sections 13 and 16 of the Succession Act 1981 (Qld) provide relevantly: "13 How a will may be revoked A will or part of a will may be revoked only – (a) ………..; or (b) ………..; or (c) by a later will; or (d) by a document that - (i) declares an intention to revoke the will or part; and (ii) is executed in the way in which a will is required to be executed under this part; or (e) by the testator, or someone in the testator’s presence and at the testator’s direction – (i) burning, tearing or otherwise destroying the will with the intention of the testator to revoke it; or (ii) writing on the will, or dealing with the will, in a way that satisfies the court, from the state of the will, that the testator intended to revoke it. … 16 How a will may be altered (1) An alteration to a will after it has been executed is not effective unless the alteration – (a) is executed in the way a will is required to be executed under this part; or (b) ……; or (c) ……. . (2) Subsection (1) does not apply to an alteration to a will made by, or at the direction of, the testator if the words or effect of the will are no longer apparent because of the alteration. (3) If a will is altered, it is sufficient compliance with the requirements under this section for execution of the alteration, if the signature of the testator and of the witnesses to the alteration are made – (a) in the margin or on some other part of the will beside, near or otherwise relating to the alteration; or (b) as authentication of a memorandum referring to the alteration and written on the will.” [Emphasis added] [21] The markings do not satisfy the requirements for a complete or partial revocation of the will under s 13, or those for alterations to the will under s 16. [22] Under s 18 the court has power to dispense with the requirements relating to execution, alteration or revocation of a will. That power may be exercised only -- 5 of 6 -- 6 where the court is satisfied that the deceased person intended the document in question to be his or her will, or to alter or revoke an existing will (partially or wholly). In the present case that intention is not apparent on the face of the document and there is no other evidence which might be of assistance in determining Mr Adams’ intention. [23] The beneficiaries named in the will1 were served with the application. None of them opposed the proposed grant of probate of the will dated 14 April 2000 without any handwritten alterations appearing therein. Mrs Adams’ estate [24] Mrs Adams died intestate, and there has been no grant of letters of administration of her estate. The whole of her estate passed to Mr Adams in accordance with the intestacy rules.2 [25] Rule 610 sub-rule (1) of the Uniform Civil Procedure Rules 1999 (Qld) provides a descending order of priority to persons to whom the court may grant letters of administration on intestacy. By sub-rule (3) the court may grant letters of administration to any person in priority to anyone mentioned in sub-rule (1). [26] Mrs Adams’ only surviving sibling is incapable to acting as administrator. Her nephew Mr Vigor consents to the appointment of Mr Hopper. [27] In all the circumstances it is appropriate that Mr Hopper attend to the administration of the two estates. Orders [28] The following orders will be made: 1. The Court declares for the force and validity of the will of Edgar George Adams (deceased) dated 14 April 2000, a copy of which is exhibit “A” to the affidavit of Trevor Robin Hopper 15 July 2011 filed herein, without any of the handwritten alterations appearing therein; 2. That probate of the will of Edgar George Adams (deceased) dated 14 April 2000 without those handwritten alterations be granted to the applicant subject to the formal requirements of the registrar; 3. That letters of administration on intestacy of the estate of Mary Adams (deceased) be granted to the applicant subject to the formal requirements of the registrar; 4. That the applicant’s costs of the application be paid out of the estate of Edgar George Adams (deceased) on the indemnity basis. 1 With the possible exception of Mr Coleman: it is not clear whether he is still alive. 2 Succession Act 1981 (Qld) s 35, schedule 2 part 1. -- 6 of 6 --