Cashin, Re [1991] QSC 234 [1992] 2 Qd R 63

IN THE SUPREME COURT OF QUEENSLAND ROCKHAMPTON 5 E. No. 44 of 1991. BETWEEN: ~ SUPREME COURT RULES AND: JOHN HENRY CASHIN JUDGMENT - DEMACK J. DELIVERED the 15th day of August 1991 . CATCHWORDS: Probate - printed will form - will clearly expresses testator's intention - will not executed in proper form - "substantial compliance" - both witnesses not present at time testator signs - s. 9 Succession Act 1981. COUNSEL: Mr G. O'DRISCOLL for Applicant SOLICITORS: GRANT & SIMPSON for Applicant HEARING DATES: 26th July, 1991. -- 1 of 7 -- IN THE SUPREME COURT OF QUEENSLAND ROCKHAMPTON E. No. 44 OF 1991. IN THE MATTER of the Rulesof the Supreme Court of Queensland - and - IN THE MATTER of JOHN HENRY CASHIN late of 73 Adelaide Street, Gladstone in the State of Queensland,Carrier, deceased. JUDGMENT - DEMACK J. DELIVERED the 15th day of August 1991. John Henry Cashin died on 11th August 1990. His widow, Dorothy Elizabeth Cashin, has applied for probate of a will said to have been executed in the month of May, 1990, or alternatively for probate of a will dated 19th December, 1966. In each case she is named as executrix. The difficulty with the 1990 will is that it has not been executed in accordance with the provisions of s. 9 of the Succession Act 1981 . The issue is whether there has been "substantial compliance with the formalities prescribed by (that) section". The 1966 will was drawn by a solicitor. By that will the deceased left a grazing property to George Charles Clark, and the rest and residue to his widow, if she survived him by at least 30 days. There were other provisions in the event that she did not live that long. The 1990 will is hand written on a will form. The handwriting provides:- -- 2 of 7 -- "To my four living sisters Molly, Dorothy Monica Pat one thousand dollars each. My car and my share in the leased ground at 7 Hanson Rd Gladstone to my son Colin. My boat if not previously sold to be sold and the money equally divided between my son Colin anddaughter Kay. To my wife Dorothy house situated at 73 paid for most of it investments I have. Elizabeth Cashin, I leave my Adelaide St Gladstone she has anyway. Cash in Bank and all I feel that my wife will adequately look after our two children. Should my wife predecease me all my assets to my sonColin Arthur Cashin and Kay Ellen Barr (Daughter) on the basis of sixty per cent to Colin and forty per cent to Kay. J Cashin" The grazing property referred to in the 1966 will had been disposed of by the deceased during his lifetime. The 1990 will, then, appears as a very proper disposition by the deceased of his estate. There is nothing suspicious about it and it seems to reflect a good understanding of testamentary responsibility. Unfortunately, it is not executed in proper form. At its foot, the deceased has written his signature. The handwriting is identified as that of the deceased, by a solicitor from the firm which held the 1966 will. However, there are no signatures of the witnesses to the deceased's signature, although the printed form reads "Signed by the testat in our joint presence and attested by us in the presence of h and each other". The deceased added the letters "or" to "testat". On the back page of the will form there are printed directions and also a printed form of codicil. The deceased -- 3 of 7 -- wrote his signature in the appropriate place on the codicil form, and there are the signatures, occupations and addresses of two witnesses in the appropriate place. The witnesses are Mr and Mrs Bielenberg. Nothing else was written on this form for a codicil. Mrs Bielenberg says that the deceased produced the will in May 1990, on a day the exact date of which she cannot recall. He signed the will in her presence and she signed the will in his presence. Next day Mr Bielenberg signed the will in the presence of the deceased and Mrs Bielenberg. They were neighbours of the deceased and had known the deceased for ten years. In May 1990, Mr Cashin told his wife that he had made a will and that it was in a drawer where he kept personal papers. After his death, Mrs Cashin found an envelope which had printed and written on it:- "WILL of John Henry Cashin To DE Cashin This Envelope contains my Last Will and Testament. I direct that immediately after my decease that this envelope shall be delivered to my Executor: Dorothy Elizabeth Cashin Signed J Cashin, Testator" This envelope contained the undated will. I was referred to the discussion about the question of "substantial compliance" in Lee' s Manual of Queensland Succession Law, 3rd edition, para 412, and to Re Matthews ( 1 9 8 9 ) 1 Qd . R . 3 0 0 . I do not intend to quote from either of these sources. It seems to me that there is an inherent -- 4 of 7 -- danger in trying to match cases which are not identical so that the test becomes one of substantial similarity with other cases rather than substantial compliance with the formalities of section 9. Section 9 provides:- Will to be in writing and sianed before two witnesses. [ Cf. Qld. s. 39; Eng. s. 9; Vic. s. 7; A.C.T. s. 9] A will shall not be valid unless it is in writing and executed in a manner hereinafter mentioned and required (that is to say) it shall besigned at the foot or end thereof by the testator or by some other person in his 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 suchwitnesses 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 insubstantial compliance with theformalities 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 testamentaryinstrument." It seems to me that proviso (a) clearly indicates that Parliament wanted to allow clear testamentary intention to override a lack of formality. It chose the words "substantial compliance" to define a judicial discretion. As Deane J. observed in Tillmann' s Butcheries Pty Ltd v. Australian Meat Industry Employees Union (1979) 42 F.L.R. 331, at p. 348, " ( 'substantial' ) is a word calculated to conceal a lack of precision". When used in a quantitative sense it does not necessarily mean "most", but may mean only "much" or "some", e.g. see Terry's Motors Ltd v. Rinder (1948) S.A.S.R. 167, at -- 5 of 7 -- p. 180. What seems to me to be important is that "the Court is satisfied that the instrument expresses the testamentary intention of the testator". Thereafter, the consideration of whether or not the testamentary instrument has been executed in substantial compliance with the formalities is a question that can only be answered according to the facts of each case. I agree with the observations of Carter J. in Re Matthews (1989) 1 Qd. R. 300, at p. 303 about the weight to the given to the fact that only one person has witnessed the testator's signature. Here the deceased has placed his signature at the foot of the will, but the signature of the witnesses is near his signature on the form for a codicil. In the circumstances here, that is not significant. Not only has the testator put his signature at the foot of the first page of the will, he has also signed the second page at the conclusion of his handwriting and the envelope in which he placed the will. He has done everything possible to indicate that this document expresses his testamentary intention. Also he told his wife he had made a will and where she could find it. The will itself contains no surprises and meets family obligations. Thus, it seems to me that this particular lack of compliance is slight, in the circumstances of the case. However, there may well be cases where a similar lack of compliance may be very significant indeed. The other issue is, of course, the fact that both witnesses were not present at the same time when the deceased -- 6 of 7 -- _§_ signed the will. However, it seems to me that again this is a slight lack of compliance in the circumstances of this case. Mrs Bielenberg was present when the deceased signed and she signed in his presence. She was present when Mr Bielenberg signed in the deceased's presence. In each case the deceased produced the will and asked a neighbour, whom he had known for years, to be witness to his signature. Nothing could be more commonplace, or likely to affirm that this was his intended testamentary disposition. I am satisfied that there has been substantial compliance with the formalities required by section 9, and that the undated will should be admitted to probate. There will be an order in terms of draft initialled by me and placed with the papers. -- 7 of 7 --