Deer (deceased), Re [2006] QSC 278

SUPREME COURT OF QUEENSLAND CITATION: Re: Deer (deceased) [2006] QSC 278 PARTIES: In the matter of John Patrick Deer deceased FILE NO/S: s451 of 2006 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court of Townsville DELIVERED ON: 28 th September 2006 DELIVERED AT: Townsville HEARING DATE: 25 th September 2006 JUDGE: Cullinane J ORDER: That Grant of Letter of Administration be made to Margaret Anne Cowan CATCHWORDS: GRANT OF ADMINISTRATION – where deceased had handwritten his Will – where Will was not witnessed by two witnesses both being present at the same time to witness the deceased’s signature on his Will. Succession Act 1981 Re: Cashin (1992) 2 QdR 63 Re: Matthews (1989) 1 QdR 300 COUNSEL: Mrs W. Pack SOLICITORS: Ruddy, Tomlins and Baxter, Solicitors, Ayr [1] The Applicant seeks a grant of administration with the Will annexed in respect of a handwritten document dated 30 January 2006 said to be the last will of the deceased. [2] A son of the deceased who died on 11 April 2006 filed a Caveat on 19 June 2006. He subsequently gave a notice in support of the caveat but on the date the matter came before the Court, a notice of withdrawal of the Caveat signed by the caveator was handed to the Court by counsel for the Applicant. It appears that the son gave the notice withdrawing the Caveat to the solicitors for the Applicant so that the matter might be placed before the Court. [3] At no time was any material in support of the Caveat filed. -- 1 of 3 -- 2 [4] The Applicant lived in a de facto relationship with the deceased from August or September 1997 until the date of his death. [5] The deceased was diagnosed with throat cancer in 2006. He was 58 at the time of his death. He was divorced and had two children. [6] According to the Applicant about a week after the deceased ceased work (with the Burdekin Shire Council) she found an envelope on the duchess beside their bed. Written on the envelope in the deceased's handwriting were the words: "Margaret - on my demise Love John." [7] The Applicant says she told the deceased she didn't wish to discuss the contents of the envelope with him and she placed it with his personal papers. [8] The document sought to be admitted to Probate does not provide for a personal representative. It leaves the whole of the estate to the Applicant. [9] The Applicant deposes that when the envelope she had previously seen was opened after the death of the deceased there was a letter to the administrator of the local government superannuation fund stapled to the hand-written document, the subject of this application. In this letter he nominates the Applicant as the beneficiary under the trust. [10] On its face the Will is signed by the deceased and by two witnesses. [11] However it is clear that the document was not attested in accordance with the requirements of s 9 of the Succession Act 1981 as amended. [12] There are affidavits from both of the witnesses. [13] One of these, Kenneth Stephen Watson, was also an employee of the Burdekin Shire Council and had known the deceased for many years. [14] He says that on a date in early 2006 the deceased approached him when they were both standing at the Rates Enquiry Counter at the Council's offices and handed him a handwritten document and asked him to sign it as a justice of the peace. [15] Mr Watson saw that it had already been signed by the deceased and witnessed by Mrs Horan, another employee of the Council. [16] The deceased told Mr Watson that he had just signed the document and that Mrs Horan had witnessed it. Mr Watson said that he couldn't very well witness the signature because the document had already been signed and took a blank piece of paper and requested the deceased to sign it in his presence. He compared the signature on the blank piece of paper with the signature on the handwritten document and they appeared to be the same. He was familiar with the deceased's signature having seen it on many occasions. -- 2 of 3 -- 3 [17] He asked the deceased what it was that he had asked him to witness and the deceased replied, "My Will", and Mr Watson said that in that event he would not read it. [18] Mrs Horan deposes to the deceased approaching her at her office at the Shire council and asked her to witness his signature in a document and then produced a document (the nature of which de did not identify) and signed it in front of her and she then witnessed his signature. There was no one else present. [19] There can I think be no doubt in the light of the evidence before the Court that the document represented the deceased's testamentary intentions. Both Mrs Horan and the Applicant, fix the time of their respective conversations with the applicant as being shortly after he finished work and it can be readily inferred when one adds the evidence of Mr Watson, that the document concerned in each case was the same. [20] The letter to the Trustee of the superannuation fund provides support for his desire to provide for the Applicant. [21] I think given that the document was signed by the two witnesses within a very short time of each other and that the deceased was known to both of the witnesses, the conclusion should be reached that the document was executed in substantial compliance with the formalities prescribed by s 9. [22] There are some similarities between this case and Re: Cashin (1992) 2 QdR 63 although the signatures there were separated by a significantly greater time. See also Matthews (1989) 1 QdR 300. In that case one of the witnesses did not sign in the presence of the testator. [23] It is in my view a case in which the conclusion that there has been substantive compliance with the formalities prescribed by s 9 is more readily able to be reached than in the two cases to which I have referred. [24] I declare that the handwritten document which is exhibit "A" to the Affidavit of Margaret Anne Cowen is the Last Will and Testament of the deceased, John Patrick Deer. [25] I make an order in terms of the draft which has been placed with the file. -- 3 of 3 --