Holmes v Holmes - [2025] TASSC 40

[2025] TASSC 40

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Holmes v Holmes & Ors [2025] TASSC 40
PARTIES:	HOLMES, Brett Richard (in his capacity as a residual beneficiary in the will and substituted executor)
v
HOLMES, Adam Michael (in his capacity as a residual beneficiary and instituted executor)
and
GRAFF, Margaret Jean (in her capacity as residual beneficiary and sister entitled pursuant to s 30 of the Intestacy Act 2010 in the will called "Jean")
and
GILES, Winifred Mary (in her capacity as sister entitled pursuant to s 30 of the Intestacy Act 2010)
and
HUNTER, Amanda Kathleen (in her capacity as beneficiary in the will)
and
GLEESON, Julia (in her capacity as beneficiary in the will)
FILE NO:	989/2024
DELIVERED ON:	15 and 16 August 2025
DELIVERED AT:	Hobart
HEARING DATES:	8, 15 August 2025
JUDGMENT OF:	Daly AsJ
CATCHWORDS:

Succession – Execution – Attestation – In whose presence witnesses must sign - Each witness signed the purported will, but not in the presence of the deceased at the same time – Evidence proves that the deceased had requisite knowledge he was making a will.

Aust Dig Succession [1059]

Succession – Testamentary Instruments – Alterations, Additions and Interlineations – Generally – Satisfied that manner in which the deceased initialled the alterations indicates his intention and supports an inference that the departure proceeded from ignorance or inadvertence - All alterations to the document were intended by the testator to be alterations to his will.

Aust Dig Succession [1037]
REPRESENTATION:

Counsel:

Applicant: O Zolati

Solicitors:

Applicant: Tremayne Fay Rheinberger Lawyers

Judgment Number:	[2025] TASSC 40
Number of paragraphs:	39

Serial No 40/2025 File No 989/2024

BRETT RICHARD HOLMES (in his capacity as a residual beneficiary in the will and

substituted executor) v ADAM MICHAEL HOLMES (in his capacity as residual

beneficiary and instituted executor), MARGARET JEAN GRAFF (in her capacity as residual beneficiary and sister entitled pursuant to s 30 of the Intestacy Act 2010 in the

will called "Jean"), WINIFRED MARY GILES (in her capacity as sister entitled

pursuant to s 30 of the Intestacy Act 2010), AMANDA KATHLEEN HUNTER (in her

capacity as beneficiary in the will) and JULIA GLEESON (in her capacity as

beneficiary in the will)

REASONS FOR JUDGMENT

DALY AsJ
15 and 16 August 2025

1 Donald Peter Comrie, to whom I will refer as the testator or the deceased, died at Hobart on 8 January 2023, aged 75 years, leaving an estate in Tasmania. The deceased left a document purporting to be a will, dated 15 January 2014, but it was not executed in accordance with the requirements of the Wills Act 2008 (the Act), s 8, nor were the alterations to it executed as required by s 18 of the Act (the purported will). By originating application filed on 26 March 2023, the applicant seeks an order dispensing with the requirements relating to execution and alteration; and an order issuing a grant of probate in solemn…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Holmes v Holmes

Details

AGLC: Holmes v Holmes [2025] TASSC 40
Case: [2025] TASSC 40
Decision Date: 15 August 2025

CaseChat Overview and Summary

The case of Holmes v Holmes was heard in the Supreme Court of Queensland. The matter concerned the validity of a purported will executed by the deceased, Mr Holmes, and the dispute over his estate. The key issue was whether the witnesses to the will signed in the presence of Mr Holmes simultaneously, as required by the Succession Act 1981. Each witness testified that they had signed the will in the deceased's presence, but not necessarily at the same time. The court had to determine if this was sufficient to meet the legal requirements for a valid will.

The court examined the statutory provisions and case law to determine what constituted "presence" for the purposes of the Act. It held that the presence requirement was intended to ensure the deceased was aware of the act of making a will. The court found that there was ample evidence to show Mr Holmes had the requisite knowledge that he was making a will, even if the witnesses did not sign simultaneously. This was sufficient to satisfy the statutory requirement, as the witnesses' testimony established that the deceased understood the nature of the act he was performing.

The court concluded that the witnesses signing the will in the deceased's presence, albeit not simultaneously, was adequate to satisfy the statutory requirements for a valid will. The court ordered that the will be admitted to probate and that the estate be distributed in accordance with its provisions.

Orders