[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…
Continue reading Holmes v Holmes
Sign in free to access the full text
- AGLC
- Holmes v Holmes [2025] TASSC 40
- Case
- [2025] TASSC 40
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.