In the Will of

[2024] QSC 239

SUPREME COURT OF QUEENSLAND

CITATION:

In the Will of Gaetano Settetrombe (also known as Guy Settetrombe), deceased [2024] QSC 239

PARTIES:

Antonette Settetrombe

(applicant)

FILE NO/S:

BS13344/24

DIVISION:

Trial Division

PROCEEDING:

On the papers

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

11^th October 2024

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Justice Callaghan

ORDER:

1. Pursuant to rule 489(1) of the Uniform Civil Procedure Rules 1999 (Qld), this application proceed without an oral hearing.

2. The Will prepared for the deceased but ultimately signed by the applicant form the Will of the deceased pursuant to s 18 of the Succession Act 1981 (Qld).

3.   Subject to the formal requirements of the Registrar, a grant of probate of the Will of the deceased, be issued to the applicant.

4.   The Estate pay the costs of the application on the indemnity basis.

SOLICITORS:

M J Kelly of Generations Law (applicant)

1. Gaetano Settetrombe (the deceased) and his wife Antonette Settetrombe (the applicant) engaged a solicitor to prepare Wills for them. The time came for the Wills to be signed. However, the deceased signed the Will prepared for the applicant and the applicant signed the will intended for the deceased.

2. Section 18 of the Succession Act 1981 (Qld) facilitates validation of a document that purports to state testamentary intentions but has not been properly executed.

3. The section can be invoked in the circumstances of this case. There is, in existence, a document that purports to embody the testamentary intentions of the deceased. There is evidence that the deceased intended this document to operate to dispose of his property upon his death. That is, he went to the effort of engaging a solicitor to prepare a Will, provided instructions for it, attended an appointment at which he thought he was signing it, and took no further steps to prepare another Will.

4. It may not reflect well on some practitioners, but the fact is that this very mistake has been made on previous occasions. I have noted the approach taken in the authorities which include Estate of Daly [2012] NSWSC 555 and In the Estate of Hendrikus Ignatius Henneam (Deceased) [2009] SASC 188. I propose, in this case, to follow a course similar to that which was taken in those cases.

5. It is not necessary to consider whether the situation might have been dealt with pursuant to the rectification power contained in s 33 of the Succession Act 1981 (Qld).

6. I propose to make the following orders:

   1. Pursuant to rule 489(1) of the Uniform Civil Procedure Rules 1999 (Qld), this application proceed without an oral hearing.

   2.The Will prepared for the deceased but ultimately signed by the applicant form the Will of the deceased pursuant to s 18 of the Succession Act 1981 (Qld).

   3.Subject to the formal requirements of the Registrar, a grant of probate of the Will of the deceased, be issued to the applicant.

   4.The Estate pay the costs of the application on the indemnity basis.