Chalmers, Re [1993] QSC 154

State Reporting Bureau ------------------------------------------------------------------------------- ( '· ( / TRANSCRIPT OF PROCEEDIN-GS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made oJr sold without the written authority of the Director, State· Reporting Bureau.) SUPREME COURT· OF QUEE~SLAND CIVIL JURISDICTION WHITE J ECC No 84 of 1993 IN THE WILL OF JUNE LORRAINE CHAL!Y1ERS late of Lot 16 Franks Road, Bla~kbutt in the State of Queensland, Retired, deceased BRISBANE .. DATE 07/06/93 JUDGMENT 1 4t1i Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 11 -- 070693 at/dbm HER HONOUR: In this matter I decline to admit to probate, the 1 • document being Exhibit 8 to the affidavit of Kathryn Leigh Police filed on 28 April 1993. I order that the costs of the applicant be .. taxed as between solicitor and client and be paid out of the estate, and I publish my reasons. 10 ,~. 20 ' ) 7 , b- 7S 30 40 50 60 JUDGMENT 2 -- 2 of 11 -- ( (__) ( •. "'--_) IN THE SUPREME COURT OF QUEENSLAND ECC No. 84 of 1993 Brisbane Before Justice White [Re: Chalmers deceased] IN THE WILL OF JUNE LORRAINE CHALMERS late of Lot 16 Franks Road, Blackbutt in the State of Queensland, Retired, deceased. REASONS FOR JUDGMENT- WHITE J. Judgment delivered 07/06/93 CATCHWORDS: Counsel: Solicitors: Probate - handwritten will - one witness only - quaere if substantial compliance - s. 9 Succession Act Mr. K. Howe Graham Davies & Associates as town agents for Mal Chalmers & Company Hearing Dates: 7th May and 3rd June, 1993 -- 3 of 11 -- 0 . ' n () IN THE SUPREME COURT OF QUEENSLAND ECC No. 84 of 1993 Brisbane Before Justice White [Re: Chalmers deceased] IN THE WILL OF JUNE LORRAINE CHALMERS late of Lot 16 Franks Road, Blackbutt in the State of Queensland, Retired, deceased. REASONS FOR JUDGMENT - WHITE J. Judgment delivered 07/06/93 By notice of motion Kathryn Leigh Police seeks an order that the purported will of her late mother, June Lorraine Chalmers dated 21st October, 1989 be admitted to probate and that she be granted probate of that will. The difficulty with the document which she seeks .to have admitted to probate is that the signature of the deceased has been witnessed by only one subscribing witness contrary to the requirements of s.9 of the Succession Act 1981. There is no attestation clause to the hand-written will but the witness, Mr. John Reece, has sworn that the deceased executed that document on 21st October, 1989 by signing her name, "intending the same -- 4 of 11 -- 2 to be her final signature to her will" in the presence of Mr. Reece. He then wrote his signature on the document under hers. Although he does not say so I am prepared to infer that he signed the document in the deceased's presence because he says "I then witnessed the.deceased's signature." Mr.· Reece swears that:- "The Testatrix at all times appeared to be in control of her faculties. She was well aware of the Will she was making. Neither myself nor the deceased were aware that there had to be two signatures to the deceased's signature." This statement as to the deceased's knowledge of the requirements of two subscribing witnesses might be questioned in 0 view of the fact that she executed a will on 27th January, 1984 c=) to which will there are two attesting witnesses. That will is type-written and drawn,up in a formal fashion and complies with the requirements of s. 9. The deceased also executed another will on 10th December, 1986 which will again was type-written and drawn up in a formal fashion and has been signed by two attesting witnesses and again, in conformity with s.9. Accordingly if the 0 ·attestation clauses to those previous wills are correct- omnia rite esse acta praesumuntur - the deceased would have seen two O ·witnesses sign those two documents which were each, respectively, to be her will. Mr. Howe, who appeared for the applicant, submitted that different considerations may have operated upon the deceased's mind when these wills were executed, if done in a solicitor's office, than wnen drawing and executing her own document at home. ·I cannot say if that was so or not. It is a matter which goes -- 5 of 11 -- 3 to the deceased's testamentary intention which I will consider in due course. It would appear that the deceased had three children, the applicant and two sons, Stephen Harold Thomas and Michael Gordon Thomas. If the document dated 21st October, 1989 is not admitted to probate then the document dated 10th December, 1986 would be eligible. In the 1986 will the deceased appointed her three children as joint executors and trustees. She gave all her (~. personal possessions to her daughter to be disposed of at her sole discretion. She gave her motor vehicle of which she stood (-) (_) l) possessed at her death to her son, Stephen Harold Thomas and gave the rest and residue of her estate to her three children in equal shares. Save for the inconvenience associated with three executors, that appears to be a proper recognition of testamentary responsibility. The document sought to be admitted to probate appointed the applicant as executrix and bequeathed to her all the deceased's personal effects including. the contents of the deceased's home in New South Wales. She bequeathed her car to her son, Stephen Harold Thomas and the rest and residue of her estate she directed to be distributed one-third ·to her daughter and her daughter's husband, one-third to her son, Stephen Harold Thomas, one-sixth to her son Michael Gordon Thomas and one-sixth to be divided among her grand children at her daughter's discretion. As can be seen, the difference between the two wills is that the son, Michael Gordon Thomas's share in the residuary estate is reduced from one-third in the 1986 will to one-sixth in the document under consideration. -- 6 of 11 -- -- ------~~------ 4 Whilst Stephen Harold Thomas supports the application, Michael Gordon Thomas, who has been served but has not appeared, has indicated by hearsay affidavit material that he wishes the 1986 will, to operate. Section 9 of the Succession Act 1981 provides as follows:- "A will shall not be valid unless it is in writing and executed in manner hereinafter mentioned and required (that is to say) it shall be signed at the foot or end thereof by the test~tor or by some other person in h~s presence and by his direction and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time and such witnesses shall attest and shall subscribe the will in the presence of the testator but no form of attestation shall be necessary provided that: (a) the Court may admit to· probate a testamentary instrument executed in substantial compliance with the formalities prescribed by this section if the Court is satisfied that the instrument expresses the testamentary intention of the testator; and (b) the Court may admit extrinsic evidence including ·evidence of statements made at any time by the testator as to the manner of execution of a testamentary instrument." As the.le.arned author of Manual of Queensland Succession Law 0 0 0 has observed of this section at p. 63 of the 3rd ed. "the cases decided on the Queensland section make rather dismal reading" and O consideration of the cases considering the interpretation of "substantial'' justifies Mr. Lee's conclusion. In Re White, (Re Henderson on appeal) (Case No. 231 of 1985) an unreported decision, Macrossan J. (as his Honour then was) held that where only one witness had attested a testamentary document that witness being a Justice of the Peace who had informed the testator that one witness only would be sufficient, it was not substantial compliance. His Honour accepted on the material that -- 7 of 11 -- ( C) 5 the document sought to be admitted to probate. did reflect the testamentary intention of the deceased. His Honour held: "When one looks at the distinct formal requirements imposed by s.9 of the Act it is seen to be prescribed that there shall be two witnesses present at the same time who are to attest and subscribe the will in the presence of the testator. Thus the legislation requires that two witnesses be involved in the testator's execution and acknowledgment. There are further subsidiary requirements applying to these two witnesses, namely, that they should be present at the same time, that they should subscribe the will and that they should do this in the presence of the testator. These further requirements, which I have described as subsidiary, may admit of compliance substantially rather than completely, but there is an essential difficulty in saying that substantial compliance with the requirements of the section has occurred if the two witnesses referred to by the section have not been involved in some way or other in the testator's execution or acknowledgment.". On appeal the Full Court dismissed the appeal and Kelly SPJ concluded:- "I would not intend, and it is not necessary for the purpose of deciding this appeal to enter upon the question of what might or might not in other circumstances amount to substantial compliance . 11 In Re Matthews 1989 1 Qd.R. 300, Carter J. after considering Re White (named Re Henderson by Carter J.) concluded at p.302:- "At the same time I do not understand the Full Court to have held in Re Henderson that because there was one witness only and not two that there can never be said to be substantial compliance. 11 His Honour went on to observe at p. 303:- "In my view the fact that there was no other person reasonably available at the time when the· testator wished to make his will may be one of some relevance. I have already said that I do not understand the Full Court to have held that in no circumstances will there be substantial compliance if only one person signs as a witness or further if two persons sign as. witnesses at different times. 11 · -- 8 of 11 -- 6 In the case.before Carter J. the testator was ill and lived on a rural property. He requested a woman who was living on the property to witness his will which she did and then to see a named person and to have that person sign the will also. When the subscribing witness saw the person who was requested to be the second witness drive down the country road with his wife she then intercepted his vehicle and had him sign the will. His Honour concluded that the document expressed the testamentary intention of the deceased, that there was no other person available as a second witness and very shortly thereafter it was 0 signed by a second witness who had previously witnessed a prior testamentary instrument of the deceased and who was told on this Q occasion that what he was signing was a new will. Williams J. in Re the Will of Eagles [1990] 2 Qd.R.501 whilst accepting the conclusion of Carter J. in Re Mat thews, supra, on the facts of that case, did not find·that there was substantial compliance with s. 9 when only one witness signed the will in the presence of the testator after observing the testator execute the document. The second subscribing witness signed the ·o document on a subsequent day. His Honour concluded at p.506:- Q 11 In the present case there was no real urgency which compelled the testatrix to proceed in the presence of only one witness. She was motivated to change her will because of her daughter's illness, but the circumstances were not such that execution of the document could not be postponed for a few hours to enable two persons to be present. 11 His Honour went on to observe:- 11 In my· view where a party seeking probate of a document is relying on there being 'substantial compliance' with the statutory requirements, there is an onus on that person to establish with some degree of precision what happened and when. 11 -- 9 of 11 -- 7 There was some confusion in the evidence before his Honour as to the date on which the document was signed by the testatrix and the attesting witness and what time lapse there was between each of the subscribing witnesses signing the document. On the material before me the document which is sought to be admitted to probate by the applicant appears to represent the testamentary intention of the deceased, even though I bear in mind the doubt which I have that the deceased did not know of the ':/~ need for two witnesses. Exhibited to the applicant's affidavit, \.... ~/ are a number of letters from the deceased to her daughter. The first is of relevance and is dated the same day as the document sought to be admitted to probate. The deceased sent her daughter the original of the purported testamentary document. She wrote that she had been intending to change her will for some time and added:- "I love you all very much but somewhere along the line Michael and I aren't as close as I would like to have been. Stephen, Kevin [the applicant's husband] and you have always been good to me and showed that you cared." There follow instructions to her daughter as to where certain personal property belonging to the deceased could be found. I should add that amongst the documents which were put before the Court was a document dated 26th February, 1990 which purported to be a codicil to the will made in October 1989. It expresses the wish of the deceased to have her daughter help Stephen Thomas administer his share of the estate. The document was signed by the deceased and witnessed by one, Warren Dunn. On the same date she wrote to her daughter asking her help with the administration of Stephen' s share of the estate. It was not sought to be -- 10 of 11 -- 8 admitted to probate as being a codicil to the document sought to be admitted to probate as a will, it clearly not being a testamentary disposition. No further explanation has been offered as to the facts and circumstances surrounding the execution of the document sought to be admitted to probate than appears in the affidavit of Mr. Reece to which I have referred. Just what constitutes "substantial compliance" is a difficult question, see observations thereon by Demack J. in Re Cashin (No. 94 of 1991; S.C. 91/234) unreported decision of 15th August, 1991. It was arguable that there had been substantial compliance 4 I \ I /' ,:: c; with the requirements of s. 9 of the Succession Act but I am 0 conscious of the weight of authority in Re White, (Re Henderson) both at first instance and on appeal and the observations of Williams J. in Re Eagles together with the peculiar facts which affected the decision of Carter J. in Re Mathews in allowing that document to be admitted to probate. I therefore conclude that there has not been substantial compliance with the requirements 0 of s. 9 of the Succession Act 1981 and decline to admit to probate, the document being ex. A to the affidavit of Kathryn CJ Leigh Police filed on 28th April, 1983. I order that the costs of the applicant be taxed as between solicitor and client and be paid out of her estate. -- 11 of 11 --