Eagles, Re the Will of [1990] QSC 18 [1990] 2 Qd R 501

; (Aqi \?.v\ IN THE SUPREME COURT OF QUEENSLAND No. E95 of 1990 Before Mr. Justice Williams IN THE WILL AND CODICIL of PHYLLIS EVA EAGLES late of 26 Ronald Street, Wynnum in the State of Queensland, Widow, deceased. JUDGMENT - G.N. WILLIAMS J. Delivered the 22nd day of February, 1990. CATCHWORDS Succession - formal validity of will - s. 9 Succession Act 1981 - substantial compliance - signed by witnesses at different times - lapse of time between signatures not established - held as substantial compliance - if valid document intended to supplement earlier will not replace it. Counsel: Solicitors: Hearing date: A. M. Wilson for Perpetual Trustees Queensland Limited, J. Couttie, E. Drury and R. Drury. Damien Mullins for S. Hatch, P. Nordwig and D. Mcclintock Chambers McNab Tully & Wilson. Morris Fletcher & Cross. 8th February, 1990. '-10101 -- 1 of 14 -- IN THE SUPREME COURT OF QUEENSLAND No. E95 of 1990 Before Mr. Justice Williams IN THE WILL AND CODICIL of PHYLLIS EVA EAGLES late of 26 Ronald Street, Wynnum in the State of Queensland, Widow, deceased. JUDGMENT - G.N. WILLIAMS J. Delivered the 22nd day of February, 1990. Phyllis Eva Eagles, "the Testatrix", died on 1 st February, 1 989 aged 95 years. The applicant, Perpetual Trustees Queensland Limited, seeks a grant of probate of a will dated 9th June, 1982, and a codicil bearing the date 12th April, 1988. There is no doubt as to the formal validity of the will dated 9th June, 1982, and in the absence of the document bearing date 12th April, 1988 there would be no ground for refusing probate of the former. The applicant, under its former name, was appointed executor by the 1982 will. Two questions were raised on the application. Firstly, was the document of 12 April 1988 executed so that it met the requisites for a valid will given the provisions of s. 9 of the Succession Act 1981. Secondly, if it was a valid testamentary instrument, was it a codicil to the earlier will, or did it impliedly revoke the earlier will so that it stood as the sole last will and testament of the testatrix. -- 2 of 14 -- 2 In April 1988 the testatrix was aged about 94 years. I accept that she owned a typewriter which she used for typing notes and letters. The evidence establishes that the document dated 12th April, 1988 was typed by her on her typewriter. Some punctuation marks in blue biro have been added, but the evidence does not enable me to say when or by whom those marks were inserted. Similarly, there are some pencil markings, and a spelling correction in pencil, which also are not explained by the evidence. It is rather difficult to reproduce the document, but the following indicates the substance of it: "If my daughter Margaret Eve Morgan should die before I do these (are) wishes, I bequetr to my cousib Grace Warren $1,000.00 to My friend, Katheen Moore $1,000.00 To my daughter Nancy Claire Beck. Half the money from sale (o)f house all contents of house all personal effects to dispose as she wishes, half money in Com. Saving Bank and Cheq Act Units in Nally & Azanda, the other half to my six grandchildren. Judith Couttie Edward Drury Robert Drury Sandra Hatch Paul Norwig Jnr Debra McClontick." The word "are" which I placed in brackets was subsequently inserted in biro; the writing would appear to be that of the testator. The 11 0 11 in the word "of" which I have bracketed appears in pencil; it is not clear by whom or when that letter was inserted. The first three named grandchildren are bracketed and the word "Aust" is written in biro against the bracket, and the latter three are bracketed and the word "U.S.A." written against it. In each case it would appear that the writing is that of the testatrix. -- 3 of 14 -- 3 Below all of that there appears the signature of the testatrix; it was accepted at the hearing that the signature was hers. Immediately below it is the signature "Petra Smith M.B., B. S. ( QLd) "; that is the signature of the attesting witness Dr. Petra Smith, about whom I will say more in a moment. Then follows the signature and date "A. Fern 12th April, 1988"; that is the signature of the attesting witness Mrs. Fern. The date was inserted by Mrs. Fern in her own handwriting. Again I will deal with her evidence further a little later. Finally there is on the bottom line the date 11 12th April, 1988" in the handwriting of the testatrix. Dr. Smith was the testatrix' s general practitioner for about the last eight years of her life. Dr. Smith deposed to relevant events in an affidavit, and she also gave oral evidence. She could recall visiting the testatrix at her, home about 9 p.m. one evening; she could remember the weather conditions but she was unable to be precise as to when it was or why she came to make the visit; and she thought it was "early in the year". When she arrived the testatrix was "very upset" because she had recently ascertained that her daughter in the United States of America was gravely ill with cancer. I am satisfied that the testatrix said to Dr. Smith words to the effect that she wanted to make some changes to her will. The Doctor confirmed in evidence that there was no doubt as to the capacity of the testatrix on the date in question. The testatrix showed Dr. Smith, who was the only other person present, the document referred to above, and I am satisfied that in the Doctor's presence she signed her name. The Doctor then -- 4 of 14 -- 4 signed below the signature of the testatrix. I am satisfied that on that occasion neither the testatrix nor Dr. Smith dated the document. I am also further satisfied that at about the time of signing Dr. Smith indicated to the testatrix that she had some doubts about the legality of what she was doing and suggested that Mrs. Eagles should see a solicitor about her will. I also accept on the balance of probability that the testatrix then said that she would get someone else to act as another witness. In her affidavit Dr. Smith said that she could "recall that there were many misspellings, alterations and corrections on the paper I signed. However I cannot recall whether all the maI:kings now made on the paper were those that were there at the time that I signed the paper;" In her oral evidence she speaks of some "talking about the corrections" after the document had been signed. Dr. Smith has been able to ascertain from records kept at the clinic where she works that she visited Mrs. Eagles on Friday, 15th April, but she is unable to swear positively that it was on that date that she attested the document . The solicitors for the applicant wrote to Medicare asking for a search of records as to claims for benefits with respect to a visit by Dr. Smith to the testatrix during the period 9th to 18th April, 1988. The only claim that Medicare could locate within that period was with respect to the visit on 15th April. However Dr. Smith did say in evidence that on occasions she did not charge for a house visit to regular patients if no treatment was given. She said it was quite possible that if Mrs. Eagles -- 5 of 14 -- 5 had asked her to call because she was upset about her daughter's condition she would have done so with a view to allaying the fears of Mrs. Eagles. She conceded it possible that the attestation of the document could have occurred on such an occasion without her charging a fee; but she could not be certain of that. In summary the evidence establishes that Dr. Smith saw the testatrix sign and then she witnessed that signature. It is also beyond doubt that she visited the testatrix on 15th April, 1988. But the evidence does not establish that the execution of the document in fact took place on 15th April, and given the whole of Dr. Smith's evidence it is not possible to infer on the balance of probability that it was on that date that the events in question occurred. I also record that in a letter to a granddaughter bearing date 17th April, 1988, the testatrix referred to the fact that Dr. Smith "came on Thursday evening". If that be regarded as a reference to the previous Thursday, then it would be a reference to a visit on 14th April, 1988. Mrs. Fern was an elderly woman who had been a neighbour of the testatrix for some 15 years. She deposed in an affidavit, and repeated in oral evidence, that she could specifically recall visiting the testatrix on 12th April, 1988. No other person was present on that occasion. She said that the visit was about 3 .30 p.m. in accordance with her regular practice .. She says that on arrival she saw a piece of paper and pen on the table in the living room. The paper was folded so that only signatures of Mrs. Eagles and Dr. Smith were visible to Mrs. -- 6 of 14 -- 6 Fern. I am prepared to accept that the testatrix said words to the effect: "I have something I want you to sign, it is my Will." Mrs. Fern neither saw or read the contents of the document, but signed it below the Doctor's signature. Dr. Smith was not then present. I accept that over some weeks prior to that visit there had been discussions between the testatrix and Mrs. Fern about the state of health of the former's daughter in America. Mrs. Fern was very adamant whilst in the witness-box that she dated the document 11 12th April, 1988", and that was the day on which she signed it. She said that she could expressly remember that it was a Tuesday. Her evidence is that the testatrix wrote the date 11 12th April, 1988" on the bottom line in her presence. The dilemma facing the applicant can be formulated in this way. If I accept Mrs. Fern's evidence that she signed the document on 12th April and the Doctor's signature was already there, then there is no basis for inferring that the document was signed by the testatrix and Dr. Smith on any particular day prior to 12th April. If I were to conclude that in all probability the testatrix and Dr. Smith signed the document on the occasion of the latter's visit on 15th April, 1988, then Mrs. Fern could not have signed it on 12th April and there is no basis for inferring that Mrs. Fern's signature was placed on the document on any particular day after 15th April. Thus it is impossible for me on the evidence to make any finding as to the lapse of time between the date on which the testatrix and Dr. Smith signed, and the. date on which Mrs. Fern signed. As -- 7 of 14 -- 7 Mrs. Fern suggests that the health of the daughter had been the subject of discussion in the "preceding weeks" to her signing, and as there is nothing in the letter of 17th April to assist in anyway, the lapse of time could on all the evidence have been a day, a week, or a month. I can find nothing which would enable me to draw an inference as to the relevant lapse of time that would be more probable than any other. The relevant Statutory provision is s. 9 of the Succession Act 1981, which provides: "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 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 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 issatisfied that the instrument expresses the testamentary intention of the testator; and (b) the Court may admit extrinsic evidence including evidence of statements made at thetime by the testator as to the manner of execution of a testamentary instrument." There is no doubt on the evidence that the two attesting witnesses were not "present at the same time" and therefore there has not been strict compliance with the basic provisions of that section. In consequence the argument was concerned with whether or not there had been in the circumstances "substantial compliance with the formalities prescribed". It is interesting -- 8 of 14 -- 8 to note that Williams and Mortimer, Executors, Administrators and Probate at p. 177 observed that more wills are refused probate for failure to comply with the requirement that the testator's signature be placed on the document when both witnesses are present and before either witness has subscribed than for any other cause. The question of "substantial compliance" has been considered in a number of Queensland decisions, and it is desirable that I refer to them briefly. In Re Grosert (1985) 1 Qd.R. 513 the attesting witnesses were not present together when the testator signed the document, and indeed the evidence did not clearly establish whether or not the testator had signed the document in the presence of either of the witnesses. As with the case before me the evidence did not establish the lapse of time between each of the attesting witnesses signing the document. There was no evidence at all forthcoming from one of the attesting witnesses. In those circumstances Vasta J. held that there had not been "substantial compliance". Thomas J. in Re.Johnston (1985) 1 Qd.R. 516 considered the situation where the document was not signed by the testatrix in the presence of any witnesses although two persons, on separate occasions, signed the document as witnesses. All the signings took place over a period of approximately one week. His Honour held that the document was not executed in "substantial compliance with the .. formalities prescribed'', emphasising that the execution and attestation procedures took place over three separate occasions. I agree with His Honour that a "liberal approach" should be taken in applying the "substantial compliance" provisions of the -- 9 of 14 -- 9 Statute, but that does not mean that the basic requirements can be entirely ignored. On 27th September, 1985 Macrossan J. ( as he then was) considered the question of substantial compliance in Re The Application by Brian Moss White (unreported, Motion No. 231 of 1985, E No. 860 of 1985) . In that case there was only one attesting witness, who was present and saw the testator sign the document. There were no other persons present at that time. His Honour observed that it was "a matter for the Court to decide in its discretion, having in mind the whole circumstances of the particular case. " He went on to say that "when a question of substantial compliance arises for determination the degree of compliance becomes an important question". Ultimately His Honour concluded that the fact that there was one witness only was "such a basic deficiency" that he was not prepared to find substantial compliance. The decision went on appeal: sub. nom. White v. The Public Trustee (unreported 13th May, 1986, Motion No. 231 of 1985; F.C. 86/028). The Full Court dismissed the appeal, merely observing that it could not be said that Macrossan J. was in error in holding as he did. Then came Re Gaffney (unreported, No. 1653 of 1987, Judgment 10th December, 1987). The document in question was made two days prior to the testator's death at the age of 80 years. As Thomas J. pointed out, difficulties arose because of the fact that the testator was partially blind, and his signature was affixed across the body of the text. There was not strict compliance with the statutory provision because the testator's signature did not appear "at the foot or end -- 10 of 14 -- 1 0 thereof". However in those circumstances His Honour had little hesitation in holding there had been "substantial compliance". That case affords an obvious example of the type of situation to which the remedial provision applies. Finally, I turn to the decision of Carter J. in R. v. Matthews (1989) 1 Qd.R. 300. There the testator signed his will in the presence of one witness only and a short time later another witness purported to attest and subscribe the will but not in the presence of the testator. His Honour placed some emphasis on the fact that in the rural situation in which the testator found himself there was only one witness available when he was intent upon making his will. The testator asked that attesting witness to take the will to a friend who had attested an earlier will and to have him sign it. That was done within a few hours. In those circumstances His Honour held that there had been "substantial compliance" with the Statutory requirements. It should be noted that His Honour was influenced by the fact that he was satisfied that the document expressed the testamentary intention of the testator. That, in my view, will always be a relevant circumstance for the Court to take into consideration, but it can hardly ever be decisive. If that was the decisive consideration then there would be no need for the formalities which have for centuries been associated with the due execution of a will. I note His Honour's observations at p. 303: "One can readily perceive of circumstances in which, on account of geographical isolation or because of some other circumstance, only one witness is available at a time when it is of central importance to a testator to express his testamentary -- 11 of 14 -- 11 wishes; perhaps he is suddenly afflicted with an illness and fears an untimely death. Perhaps other circumstances reasonably require of him that he make his will but he has only one witness available. This is only to say again that each case will depend on its own facts and that the question whether there is in the circumstances substantial compliance will remain a matter of degree." I agree entirely with those sentiments, but it does not follow that in all cases where there has been attestation by only one witness present at the time the testator signed the document, there will be "substantial compliance". 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. Mrs. Fern was next door at all material times, and inferentially the only reason she .was not called in when Dr. Smith was present was because it was about 9 o'clock at night. Thus the facts of this case can readily be distinguished from those established by the evidence in Matthews. In my view where a party seeking probate of a document Ls 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. Here, as I have already pointed out, it is unclear on.what date the document was signed by the testatrix and Dr. Smith; it is uncertain what time lapse there was between each of the -- 12 of 14 -- 12 attesting witnesses signing the document; and it is not clear whether or not any of the alterations to the document to which I have already referred were in existence at the time of either attesting witness signing (though this latter point is not of any great significance). In all of the circumstances I am not satisfied that there has been "substantial compliance" with the requirements of s. 9, arid therefore I would not admit the document bearing date 12th April, 1988 to probate. In those circumstances it is only necessary that I deal very briefly with the second matter raised on the application. In my view it is of critical importance that the document purports to make its operation conditional upon the death of the testator's daughter prior to her own death. As I have already observed the testator was in April 1988 aged about 94, and, although she appeared to Mrs. Fern to be in very good health, it must have been obvious that there was no certainty that she would outlive her daughter, although the latter was suffering from cancer. Further, the document of 12th April, 1988 did not appoint an executor, confer any special powers on an executor, or contain a clause disposing of residuary estate. All of those matters were included in the will of 9th June, 1982. In those circumstances it is my view that the testator intended to supplement her earlier will rather than to replace it. That appears to be the test applied in cases such as Chichester v. Ouatrefages (1895) P. 186. -- 13 of 14 -- 13 I appreciate that if the document dated 12th April, 1988 was admitted to probate as a codicil of the earlier will then problems would arise in construing the two documents together. But that is a problem of construction which is of no concern on the present application. If I was satisfied that the document of 12th April, 1988 had been executed in "substantial compliance" with the requirements of the Statute then I would admit it to probate as a codicil to the will of 9th June, 1982. But in the circumstances, and for the reasons I which have already given, I will only admit the will of 9th June, 1982 to probate. -- 14 of 14 --