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 form in relation to the purported will.

2   The originating application seeks the following orders:

(1)	That pursuant to s 10 of the Wills Act there be a grant of probate to the applicant of the will of Donald Peter Comrie, late of 4 Stanley Street, Oatlands in Tasmania, dated 15 January 2014 ("the will") even though it has not been executed in the manner required by s 8 of the Wills Act.
(2)	That the will be uplifted from the file and deposited in the Probate Registry.
(3)	That the costs of the application be paid out of the estate of Donald Peter Comrie as agreed or taxed on a solicitor/client basis.

3             The original document was produced to the Court and a copy was also exhibited to the affidavit of Amanda Kathleen Hunter and marked "A". It is impossible to appreciate the nature of the handwritten parts of the document without viewing the original.

4             In the purported will, the testator appointed Adam Holmes to be his executor and trustee and, if Adam Holmes predeceased the testator, or was unwilling or incapable of acting, then Brett Holmes was appointed. By email dated 4 April 2023, Adam Holmes wrote to the solicitor for the applicant stating:

"I confirm that I renounce my right to bring the Application and if successful to be the
Executor of the Will."

5            I find that Adam Holmes is unwilling to act as executor and trustee of the testator's estate and therefore Brett Holmes is a proper applicant for the issue of a grant of probate.

6 Rule 800 of the Supreme Court Rules 2000 provides that an applicant for a grant of probate relying on s 10 of the Act is to join as a respondent each person whose interests might be affected by the making of the order sought. Each of the respondents to this proceeding is a person affected by the

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orders sought, whether as a beneficiary under the purported will, or as a person entitled to share in the distribution of the intestate estate under the Intestacy Act 2010. I am satisfied that the applicant has complied with r 800. Each of the respondents was served with an originating application providing notice of the proceedings and the orders sought, together with the affidavits of Richard Holmes, Amanda Kathleen Hunter, Anita Louise Valentine and Julia Gleeson. Each respondent (except the third-named respondent) acknowledged by letter that they had been served with the proceedings notifying them of the orders sought, together with the affidavits in support. Each respondent has communicated their consent to the orders sought in writing in the forms annexed to the affidavit of Owen Zolati sworn 18 June 2024. In the case of the third named respondent Margaret Jean Graff, she filed a notice of appearance, through her solicitors Murdoch Clarke and, by means of a consent order dated 11 June 2025, she consented to the orders sought by the application.

The evidence on the application

7   On the hearing of the application, the following affidavits were read:

(i)          Affidavit of Amanda Kathleen Hunter sworn 4 July 2023;

(ii)         Anita Louise Valentine sworn 23 June 2023;

(iii)        Brett Richard Holmes sworn 29 June 2023;

(iv)        Julia Gleeson sworn 26 June 2023;

(v)         Owen Michael Zolati affirmed 18 June 2024;

(vi)        Winifred Giles sworn 2 July 2024;

(vii)       Simon Beaumont sworn 13 March 2025;

(viii)      Margaret Jean Graff affirmed 29 May 2025; and

(ix)        Owen Michael Zolati, affirmed 2 July 2025.

The purported will

8             The purported will is a "do-it-yourself will kit" which promised to be "a step by step process of preparing a legal will throughout Australia". It contains inter alia a heading and revocation clause, it provides for the appointments of an executor and an alternative, it makes provision for specific gifts, the residuary estate and for the survivorship of beneficiaries. In the sections provided by the will kit, the deceased appointed his executors and provided for specific and residual gifts in his own handwriting. The purported will was later altered by the following gifts being "crossed out":

- "Winifred Giles $10,000";

- "Gary and Lisel Giles Contents of house and $10,000 cash";

- "Mrs Suzanne Cavanagh the sum of ten thousand dollars", with a note "AUD $10,000";
and

- "Diamond and gold bracelet to Lesley Richards + $5000 cash"

9             Each alteration is initialled or marked with what looks very much like an abbreviation of (at least) the testator's signature. Mrs Graff deposed that, in relation to the gift to Winifred Giles, in about 2020 the testator told her that he had changed his will and that he had "cut Win out". I accept that this conversation relates to the alteration to the will which "crossed out" the gift to Winifred Giles. This

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evidence strongly supports the conclusion that the testator intended the alteration to bring about the removal of that gift from his will. Because the other alterations to the purported will have been made in a similar way, I also accept that all the alterations to the document were intended by the testator to be alterations to his will. I am satisfied of these facts beyond reasonable doubt.

Manner of execution of the purported will

10           The evidence establishes that the testator produced the purported will to his friend Julia Gleeson on 15 January 2014. In her affidavit, Ms Gleeson deposed that on 15 January 2014, "I witnessed him sign the will" at a lunch to which the testator had invited her for that specific purpose. Ms Gleeson deposes that she signed it in black pen and that she wrote her details in the witness section "in the presence of the Testator only". The place where Ms Gleeson signed the will states "Signed by the above Testator in the presence of both of us the witnesses being present at the same time and signed by each of us in the presence of each other and the Testator". Those words obviously do not reflect what happened.

11           Counsel for the applicant submitted (at par 19) that the purported will was "signed by the testator before Julia Gleeson", referring to pars 3-5 of Ms Gleeson's affidavit. I accept that submission.

12           The other person who signed the will as a witness was Simone Beaumont, who has no recollection of placing her signature on the document but she identifies her signature and her handwriting on the document and I accept that it is hers. Ms Beaumont's affidavit states:

"5	I do not know the Testator and it is most likely that he was somebody who came into my shop, Proud's Jewellers at Eastlands, where I was working in January 2014 and remain working now, and simply asked me to simply witness his signature. In those circumstances I would not usually have read the document and if I did in this case, I cannot remember doing so.
6	Because I do not remember witnessing the Will I do not remember whether the handwritten amendments were present on the Will when I signed it or not."

13           On an inspection of the original document, it is evident that blue pen was used by each of the testator and Ms Beaumont, which might support an inference that Ms Beaumont witnessed the testator's signature, but that could be pure coincidence. Whatever the truth of the situation, it appears that on the evidence, the Court can only be satisfied that one witness – Ms Gleeson - was in the testator's presence when he actually signed the purported will.

14           I accept counsel for the applicant's submission that the extent of the departure from the requirements in relation to the execution is slight, in that the purported will was signed by two witnesses, but only one witness was present at the time when the testator signed. The extent of the testator's departure from the requirements for validly altering a will was not slight, but the manner in which he initialled the alterations clearly indicates his intention and strongly supports an inference that the departure proceeded from ignorance or inadvertence.

Searches for other testamentary documents

15           Amanda Kathleen Hunter was a close friend of the testator. She deposed that "for years I knew where the Will was located" (at para 4) and that the testator first showed her where it was in 2014, after his wife died (the testator's wife died in 2013 – see the affidavit of the applicant sworn 29 June 2023, Annexure D). Ms Hunter deposed that she knew where the testator kept the will while he maintained a home. From a date "approximately 4 weeks prior to [the testator's] death on 8 January 2023" the will was in Ms Hunter's possession, at her home in Howrah.

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16           The applicant deposed that he conducted a thorough search of the testator's premises and property, but found no other testamentary documents. The applicant also deposed to his information and belief that the testator did not make any other will: see the affidavit of Brett Richard Holmes sworn 29 June 2023, par 16. Anita Valentine, in her affidavit sworn 23 June 2023 also deposes to the fact that she conducted thorough searches for any relevant testamentary documents, enquiring of the Public Trustee (pars 3-4), TPT Wealth (par 5) and that she placed an advertisement in the newsletter of the Law Society of Tasmania. Those searches were unsuccessful (see par 6). Amanda Kathleen Hunter, in her affidavit sworn 4 July 2023 deposed to the fact that she conducted a thorough search of the testator's home in the early stages of the administration of his estate. No relevant documents were found.

17          I am satisfied that all reasonable searches have been conducted and that on the evidence before me, no other will exists.

The estate

18   The testator died leaving a small estate.[1] The purported will provided as follows:

[1] See the affidavit of Brett Richard Holmes sworn 29 June 2023, par 19.

(a)	to Julia Gleeson, a diamond ring of her choosing and $5,000;
(b)	the diamond rings and other jewellery of Sandra Comrie (deceased) to Mrs Jean Graff;
(c)	a diamond of her choosing to Amanda Hunter;
(d)	the residue to be divided equally between the applicant Brett Holmes, Mr Adam Holmes, and Mrs Jean Graff;
(e)	if all of the beneficiaries listed above predeceased the testator, he gave the residue of his estate to Gary and Lisel Giles, because none of the other beneficiaries had predeceased the testator, Gary and Lisel Giles were not served with the proceedings.

The relevant legal principles

19   Section 10 of the Act, which contains the dispensing power, is in the following terms:

"10 When Court may dispense with requirements for execution of wills

(1)	A document or part of a document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in the manner required by this Act, constitutes a will of the deceased person, an alteration of such a will or the revocation of such a will, if the Court is satisfied beyond reasonable doubt that the deceased person intended the document to constitute his or her will, an alteration of his or her will or the revocation of his or her will.
(2)	In forming its view, the Court may have regard (in addition to the document or any part of the document) to any evidence relating to the manner of execution or testamentary intentions of the deceased person, including evidence (whether admissible before the commencement of this Act or otherwise) of statements made by the deceased person.
(3)	This section applies to a document whether it came into existence within or outside Tasmania.

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(4)	For the purposes of this section –
document has the same meaning as in the in section 24(bb) of the Acts Interpretation Act 1931."

20 Section 8(1) of the Act sets out the requirements for the execution of a will:

"8 How a will should be executed

(1)

A will is not valid unless –

(a)	it is in writing and signed by the testator or by some other person in the presence of and at the direction of the testator; and
(b)	the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time; and
(c)	at least 2 of those witnesses attest and sign the will in the presence of the testator (but not necessarily in the presence of each other)."

21 Section 18 of the Act sets out the requirements for how a will is to be altered:

"18 How a will may be altered

(1)	An obliteration, interlineation or other alteration made in any will after the execution of the will is not valid, except so far as the words or effect of the will before the alteration are not apparent, unless the alteration is executed in accordance with Division 2 of this Part or Division 2 of Part 3.
(2)	A will, with an alteration as part of the will, is taken to be duly executed if the signature of the testator and the subscription of the witnesses are made in the margin or on some other part of the will opposite or near to the alteration or at the foot or end of, or opposite to, a memorandum referring to the alteration and written at the end or on some other part of the will."

22           The remedial nature of the Court's dispensing power was dealt with by King CJ in In the Estate of Williams (deceased) (1984) 36 SASR 423, one of the earlier South Australian decisions that dealt with the informal wills regime:

"[The dispensing power] is a remedial provision designed to avoid failure of the testamentary purpose caused by non-compliance with the formalities required by s 8 arising out of ignorance or inadvertence."

23           In this case, the dispensing power in s 10 is being considered at the same time as the Court is also dealing with an application for the issue of a grant of probate which involves a broader inquiry than that contemplated in Estate of Williams.

24          The three elements that need to be proven in order that the Court may issue a grant of probate in solemn form were concisely stated by Powell JA in Hatsatouris v Hatsatouris [2001] NSWCA 408 at [56]:

"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,

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(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?"

25           In Gee v University of Tasmania [2025] TASSC 36 and Sultan v Melick & Ors [2023] TASSC 4, Brett J summarised the nature of the Court's task:

"When the Court makes the grant in solemn form, it is performing a public act. The nature of this act was explained by Lindsay J in Estate Kouvakas; Lucas v Konakas

[2014] NSWSC 786:

'In making an order for a grant in solemn form the Court must satisfy itself that there are reasonable grounds for a determination calculated, so far as the Court fairly can, to bring finality to any controversy about the testamentary intentions of the deceased, if any. The object of an application for a grant in solemn form is to secure a judgment of the Court binding on all persons who might be entitled to challenge the validity of a will: Re Young, Hobbs v Christchurch City [1968] NZLR 1178 at 1178 (46).

A grant expressly issued "in solemn form" is a judicial statement that, on the Court's then assessment:

(a)	all persons interested in the making of a grant (and, particularly, those with an interest adverse to the making of a grant) have been allowed a fair opportunity to be heard, with a consequence that principles about the desirability of finality in the conduct of litigation should weigh heavily on any application for revocation of the grant;
(b)	on evidence then formally noticed, the Court is satisfied that the particular grant represents, consistently with the law's requirement that testamentary intentions be expressed formally, an expression of the deceased's last testamentary intentions, if any; and
(c)	an order for a grant in solemn form appropriately serves the due administration of justice'".

26           On the question of validity, Brett J explained in McKay v Hearps [2021] TASSC 62 at [14], and confirmed in Gee how the Court must deal with the essential requirements of (a) testamentary capacity; and (b) knowledge and approval, stating:

"14 The legal requirements of a valid will are well settled and not in dispute. The essential requirements of validity include sufficient testamentary capacity on the part of the testator, and the testator's knowledge and approval of the contents of the will. These requirements will be presumed if the will is rational on its face and duly executed and attested in accordance with the relevant legal requirements: Wheatley v Edgar [2003] WASC 118 at [24]. However, the presumption will only apply in the absence of evidence to the contrary. If the circumstances surrounding the making of the will and its execution raise a suspicion in respect of either or both of these requirements, then the Court, after a vigilant examination of the whole of the evidence, must be affirmatively satisfied of the requirement in question before the will can be admitted to probate: Timbury v Coffee [1941] HCA 22; 66 CLR 277; Wheatley v Edgar (above); Howroyd v Howroyd [2011] TASSC 73; Sutherland v Bukoven [2019] TASSC 20."

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27          In relation to the requirement of testamentary capacity, in Gee (above) Brett J stated that it must be established that the testator possessed:[2]

[2] See Banks v Goodfellow (1870) LR 5 QB 549, The Will of Wilson (1897) 23 VLR 197; Timbury v Coffee [1941] HCA

• sufficient mental capacity to comprehend the nature of the act of making a will and its effects;

• an understanding of the extent and character of the property forming the estate; and

• the ability to assess and weigh the moral claims of potential beneficiaries.

28          The requirement(s) of the deceased's knowledge of the will and approval of its terms are to be dealt with independently of the question of testamentary capacity. In McKay v Hearps Brett J stated:

"The requirement of knowledge and approval is a different concept, and only arises for consideration if the Court is satisfied that the testator had adequate testamentary capacity. The question is essentially a factual one, that is, it must be shown that the testator, as a matter of fact, knows that the document in question is his or her will, knows in substance how it deals with his or her property, and by execution, approves of the contents of the document. It does not require anything more. The testator is not required to know every detail of the clauses contained in the will or understand every aspect of their legal effect. Self-evidently, the focus is on the circumstances surrounding the preparation and execution of the will. It is irrelevant that the testator subsequently changes his or her mind, and withdraws approval, if this decision is not carried into effect by a further testamentary act. A common example of circumstances casting suspicion on the question of knowledge and approval is where the will has been prepared by a beneficiary. However, other circumstances can excite suspicion if they call into question whether the testator knew and/or approved of the contents of the will. See Nock v Austin (1918) 25 CLR 519 and generally the cases referred to by Prof Dal Pont in Law of Succession, 3rd ed."

Consideration

29           The first question asked by Hatsatouris is answered in the affirmative. The nature of the purported will is a "paper…on which there is printing [and] writing"[3] which self-evidently purports to embody the testamentary intentions of the testator. The form of the document is a do-it-yourself will kit which is designed - and completed by the testator - to express his testamentary intentions.

[3] Acts Interpretation Act 1936 s 24(bb).

30           The second question asked by Hatsatouris - whether the document embodies the deceased's testamentary intentions - requires an examination of all the evidence, which includes a consideration of testamentary capacity, rationality of the document and the mode of its execution and attestation.

31           I am satisfied beyond doubt that the testator had "sufficient mental capacity to comprehend the nature of the act of making a will and its effects"[4] because he used a do-it-yourself will kit (as distinct from, for example, a document authored completely from scratch by the testator); that he made specific bequests; and that he arranged for two witnesses to sign the document (one of whom signed in the testator's presence). The document is rational on its face. It appoints executors and it makes provision for persons who would be the natural object of a testamentary disposition by the testator in all of the circumstances. The purported will provides specific gifts to the friends and family of the deceased and distributes the residual estate to his two step-sons and his sister. Further support for the conclusion that the testator had capacity to prepare and execute the will is Ms Gleeson's

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[4] See Banks v Goodfellow (1870) LR 5 QB 549, The Will of Wilson (1897) 23 VLR 197; Timbury v Coffee [1941] HCA

evidence that he arranged for the lunch with the specific purpose of Ms Gleeson witnessing the
testator executing the will.

32           I find that the testator understood "the extent and character of the property forming the estate" (see footnote 2 above) because of the nature and description of the property contemplated in the specific bequests. There is no suggestion that the property deposed of in the will does not exist or that he had a flawed perception of what his estate comprised.

33           I am also satisfied that the testator had the ability to "assess and weigh the moral claims of potential beneficiaries". On the evidence before me, the beneficiaries of his will are people who might be expected to be in his contemplation. Because the will is in the testator's own hand; and because he took the will to Ms Beaumont at Proud's to have his signature witnessed; and because he invited Ms Gleeson to attend his home for lunch and to witness his will, there can be no doubt that the deceased had the requisite knowledge that he was making a will and that he approved of the specific terms of the document.

34           In relation to the third question of fact posed in Hatsatouris relating to whether the deceased demonstrated his intention that the document would be his will, on the application of those principles referred to by Brett J in Gee (above), I am satisfied that he clearly intended the document to be his last will and testament.

35           The evidence above satisfies me that the testator, as a matter of fact, knew that the document was his will. Further, because of the nature of the form of the will, and the testator's own drafting, it is beyond doubt that the testator understood how the will dealt with his property and that he approved of its contents. I am satisfied beyond reasonable doubt about this because of the evidence of Amanda Hunter that the testator showed her where the will was in 2014, and that only days before he died, he said word to the effect "you know where my will is".

Dispensation from execution and alteration requirements

36 The Act, s 8 requires that a will must be signed by a testator in the presence of two witnesses, both present at the time of signing. Obviously, in this case, s 10 was not complied with because Ms Beaumont was not present when the testator signed it in Ms Hunter's presence. Even if I were wrong about which witness was present when the testator signed the document (or even whether a witness was present), it would not impact upon the view I have come to in respect of the questions arising under s 10. The power to dispense with the requirements for the execution of the will may properly be exercised in this case because I am satisfied beyond reasonable doubt that the testator intended the relevant document to constitute his will.

37           In the circumstances of this case, the remedial dispensing power (in respect of both the execution and alteration of the will) should be exercised in order to avoid failure of the testator's clear testamentary purpose caused by non-compliance with the formalities required by ss 8 and 18 of the Act. I am satisfied beyond reasonable doubt that the testator's failure to comply with the requirements of ss 8 and 18 arose of his ignorance or inadvertence: In the Estate of Williams (deceased). There is no evidence to suggest that these failures were deliberate.

Conclusion and orders

38           I am satisfied that "all persons interested in the making of the grant have been allowed a fair opportunity to be heard": see Gee at [11], citing Sultan, Kouvakas, and Re Young, Hobbs v Christchurch City. I am also satisfied a grant of probate in solemn form will reflect that the testator's testamentary intentions have been "expressed formally, an expression of the deceased's last testamentary intentions" and that a grant of probate in solemn form "appropriately serves the due administration of justice": Gee at [11].

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39   I make the following orders:

(1)	That there be a grant of probate in solemn form of the will of Donald Peter Comrie, late of 4 Stanley Street, Oatlands in Tasmania, dated 15 January 2014 ("the will") even though it has not been executed in the manner required by s 8 of the Wills Act 2008 nor altered in the manner required by s 18 of the Wills Act.
(2)	That the will is to be uplifted from the civil file and deposited in the Probate Registry.
(3)	That the costs of this application be paid out of the estate of Donald Peter Comrie as agreed or taxed on a solicitor/client basis.
(4)	That there be liberty to apply for any further direction or order to give effect to these orders.

22; 66 CLR 277; McKay v Hearps [2021] TASSC 62 at [14].

22; 66 CLR 277; McKay v Hearps [2021] TASSC 62 at [14].