Fraser v Melrose

Case [2016] QSC 213

SUPREME COURT OF QUEENSLAND

CITATION:

Fraser & Anor v Melrose & Ors [2016] QSC 213

PARTIES:

SUSANNE DONNA FRASER and ROSLYN JANE MELROSE (as executors named in the Will dated 3 November 2000 of ROYSTON PATRICK MELROSE deceased)

(applicants)

v
HELEN LEE MELROSE

(first respondent)
and
STEPHEN PETER SOLLY
(second respondent)
and
BEVERLEY MELROSE
(third respondent)

FILE NO/S:

No 8111 of 2016

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

20 September 2016

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers.

JUDGE:

Peter Lyons J

ORDER:

The application should be granted.

CATCHWORDS:

SUCCESSION – MAKING OF A WILL – TESTAMENTARY CHARACTER – where the deceased made a Will dated 3 November 2000 – where document dated 9 December 2015 purporting to alter a Will of 11 October 2000 was found stapled to a copy of the Will of 3 November 2000 – where the document was signed by testator but not witnessed in accordance with s 10 of the Succession Act 1981 (Qld) – where s 18 of the Succession Act 1981 (Qld) permits the court to admit a document to probate if satisfied it embodies the testamentary intentions of the deceased, despite non-compliance with legislative requirements – whether the document signed by the deceased embodies the deceased’s testamentary intention – whether the document dated 9 December 2015 forms an alteration of the Will dated 3 November 2000

Succession Act 1981 (Qld), s 10, s 18

Bailey v Bailey (1924) 34 CLR 558
Frizzo & Anor v Frizzo & Ors [2011] QSC 107
Hatsatouris v Hatsatouris [2001] NSWCA 408
In the Estate of the late Ronald Robert Irvin; Evans v Gibbs [2015] NSWSC 432
Konui v Tasi [2015] QSC 74
Lindsay v McGrath [2015] QCA 206
Oreski v Ikak [2008] WASCA 220
Read v Carmody [1998] NSWCA 182
Teasel v Hooke [2014] NSWSC 1839
The Estate of Masters; Hill v Plummer, Plummer v Hill (1994) 33 NSWLR 446

SOLICITORS:

Gill & Lane Solicitors for the applicants

  1. This is an application for a determination under s 18 of the Succession Act 1981 (Qld) that a document dated 9 December 2015 forms an alteration of the Will dated 3 November 2000 of Royston Patrick Melrose, deceased.

    Background

  2. The deceased died on 20 February 2016, aged 85.  He had been married for 27 years to Beverley Melrose, but on some unstated date they were divorced.  Nevertheless they maintained a good relationship.

  3. The deceased had three daughters, Susanne Donna Fraser (Susanne), Helen Lee Melrose (Helen) and Roslyn Jane Melrose (Roslyn).  Roslyn has a partner, Stephen Solly, referred to as “Steve”. 

  4. On 3 November 2000, the deceased executed a Will appointing Helen, Susanne and Roslyn as his executors, and leaving his estate to them in equal shares.  This Will was prepared by solicitors, and was duly executed.

  5. For a period, Roslyn and Steve lived in the deceased’s home.  They made some improvements to the house at their own expense.

  6. In November 2015, the deceased asked…

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Details
AGLC
Fraser v Melrose [2016] QSC 213
Case
[2016] QSC 213
Decision Date

CaseChat Overview and Summary

The case of Fraser v Melrose involves an application under section 18 of the Succession Act 1981 (Qld) to determine if a document dated 9 December 2015 constitutes an alteration to the Will dated 3 November 2000 of the deceased, Royston Patrick Melrose. The Will, executed on 3 November 2000, left the deceased's estate to his three daughters in equal shares. The document in question, which was not witnessed in accordance with section 10 of the Act, references a Will dated 11 October 2000, and states that $21,526.95 should be paid to Roslyn and Steve before distribution of the estate to the deceased's daughters, and that Beverley, the deceased's ex-wife, should receive any paintings she wishes. The court was required to decide if the document reflects the deceased's testamentary intentions and if it forms an alteration to the Will dated 3 November 2000.

The court found that the deceased intended the note to form part of his Will, despite the note not being witnessed as required by the Act. The court held that the document dated 9 December 2015 does embody the deceased's testamentary intentions, as it references a sum of money to be paid to Roslyn and Steve before distribution to the deceased's daughters, and that Beverley should receive any paintings she wishes. The court concluded that the document constitutes an alteration to the Will dated 3 November 2000. The court relied on the principle that the questions arising under section 18 are essentially questions of fact, and the court must be satisfied on the evidence that the deceased intended the document to operate as his Will.

The court granted the application, allowing the document dated 9 December 2015 to be considered an alteration to the Will dated 3 November 2000. This decision ensures that the deceased's testamentary intentions are respected, despite the document not being executed in accordance with the legal requirements. The court's reasoning is grounded in the understanding that the primary concern is the deceased's intention to have the document operate as his Will, rather than the strict adherence to the formalities of will-making.

Orders

Orders of the court

The application should be granted.

Background

Background to the litigation

This is an application for a determination under s 18 of the Succession Act 1981 (Qld) that a document dated 9 December 2015 forms an alteration of the Will dated 3 November 2000 of Royston Patrick Melrose, deceased.Background The deceased died on 20 February 2016, aged 85. He had been married for 27 years to Beverley Melrose, but on some unstated date they were divorced. Nevertheless they maintained a good relationship. The deceased had three daughters, Susanne Donna Fraser (Susanne), Helen Lee Melrose (Helen) and Roslyn Jane Melrose (Roslyn). Roslyn has a partner, Stephen Solly, referred to as “Steve”. On 3 November 2000, the deceased executed a Will appointing Helen, Susanne and Roslyn as his executors, and leaving his estate to them in equal shares. This Will was prepared by solicitors, and was duly executed. For a period, Roslyn and Steve lived in the deceased’s home. They made some improvements to the house at their own expense. In November 2015, the deceased asked Roslyn for receipts for the work that she and Steve had undertaken, while living with her father. He said that he would be “adding details” to his Will. Roslyn provided him with a spreadsheet listing expenditures, totalling $21,526.95. She asked him to speak to her sisters about this, so that they would not be surprised after his death. Susanne deposed that she was aware that her father intended to reimburse Roslyn and Steve for money spent on the house, because he had said that to her quite often. Susanne’s husband, Ian Fraser, deposed that on the evening of 11 February 2016 he stayed with the deceased overnight. On that occasion, the deceased said that he did not want to go into a nursing home because he wanted as much money from his estate as possible to go to his daughters upon his death, but that there was a sum of approximately $21,000 that first had to go to Roslyn and Steve from the estate, to reimburse them for the renovations completed to the downstairs area of his house. He also said there was a note attached to his Will; and that in the note he had stated that Beverley was to get all of his paintings if she wanted them. After the deceased’s death there was found amongst his possessions an unsigned copy of his Will dated 11 November 2000. Stapled to that document was a letter to the deceased from the solicitors who prepared the Will, dated 31 October 2000. A handwritten note on the copy Will, apparently by the deceased, records that the deceased signed the Will on 3 November 2000 and left it in the safe of the solicitors. There is also stapled to these documents a receipt from the solicitors dated 3 November 2000. The fourth document in this stapled bundle is the handwritten note the subject of this application. It is headed, “TO WHOM IT MAY CONCERN”; and on the next line, “ALTERATIONS TO MY WILL”, with a reference to a Will dated 11 October 2000. It records that, “after all monies are finalised from my estate”, the sum of $21,526.95 is to be paid to Roslyn and Steve “before distribution of monies to my three daughters”; and that “my ex wife Beverley is to receive any paintings she wishes”, no doubt from the estate. Then follows the word “signed”, together with the name and address of the deceased, beneath which appears his signature. The document is dated “9-12-2015”. Plainly it has not been executed in accordance with s 10 of the Succession Act 1981 (Qld), the signature being unwitnessed.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In the circumstances, I am satisfied that the deceased intended the note to form part of his Will. The declaration sought by the applicants relates to the Will dated 3 November 2000; whereas the note refers to a Will dated 11 October 2000. There is no evidence to suggest that a Will of that date ever existed, and the most likely explanation is a mistake by the deceased in recording the date of his Will.Conclusion I am satisfied that the deceased intended the note dated 9 December 2015 to form an alteration to his Will. An order should be made, granting the application, in accordance with the draft provided by the applicants.

Ratio Decidendi

Legal Principle Established

That section is in the following terms“18 Court may dispense with execution requirements for will, alteration or revocation(1) This section applies to a document, or a part of a document, that—(a)purports to state the testamentary intentions of a deceased person; and(b)has not been executed under this part.(2) The document or the part forms a will, an alteration of a will, or a full or partial revocation of a will, of the deceased person if the court is satisfied that the person intended the document or part to form the person’s will, an alteration to the person’s will or a full or partial revocation of the person’s will.(3) In making a decision under subsection (2), the court may, in addition to the document or part, have agreed to—(a)any evidence relating to the way in which the document or part was executed; and(b)any evidence of the person’s testamentary intentions, including evidence of statements made by the person.(4) Subsection (3) does not limit the matters a court may have regard to in making a decision under subsection (2).(5) This section applies to a document, or a part of a document, whether the document came into existence within or outside the State.” In Lindsay v McGrath[2] Boddice J cited with approval the following statement of Powell JA in Hatsatouris v Hatsatouris[3] about the analogous provision now found in s 8 of the Succession Act 2006 (NSW),“It is, and has long been, my view that the questions arising on applications raising a question as to the applicability of s 18A are essentially questions of fact, the particular questions of fact to be answered being:(a) was there a document,(b) did that document purport to embody the testamentary intentions of the relevant Deceased?(c) did the evidence satisfy the Court that, either, at the time of the subject document being brought into being, or, at some later time, the relevant Deceased, by some act or words, demonstrated that it was her, or his, then intention that the subject document should, without more on her, or his, part operate as her, or his, Will?”[2] [2015] QCA 206.[3] [2001] NSWCA 408 at [56]. Of paragraph (c), Boddice J said[4],“The third requirement requires the Court to be satisfied on the evidence that the deceased, either at the time of drafting the document or subsequently, formed the intention that the particular document operate as his or her Will. That requirement does not involve establishing that the deceased consciously set his or her mind to the legal formalities of making a Will.[5] However, it is not enough that the document set out the deceased’s testamentary intentions. What must be established, by evidence, is that the deceased intended the document to operate to dispose of the deceased’s property upon death.[6]” [4] Lindsay at [59].[5] The Estate of Masters; Hill v Plummer, Plummer v Hill (1994) 33 NSWLR 446 per Kirby P (as his Honour then was) at 452.[6] Oreski v Ikak [2008] WASCA 220 at [54]. The language of paragraph (c) in the statement of Powell JA in Hatsatouris might be read as adding to the requirements to be satisfied in order to obtain relief under s 18 of the Succession Act. In Teasel v Hooke[7] Lindsay J said,“What (the words in s 8 of the Succession Act 2006 (NSW)) do is direct attention to a consideration of whether the particular document was intended to operate as a will: to have present operation as such, not to serve merely as a draft, diary note or the like.”[7] [2014] NSWSC 1839 at [28].